[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1103 Introduced in House (IH)]
104th CONGRESS
1st Session
H. R. 1103
Entitled, ``Amendments to the Perishable Agricultural Commodities Act,
1930''.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 1, 1995
Mr. Pombo (for himself, Mr. Doolittle, Mr. Foley, Mrs. Thurman, Mr.
Pastor, and Mr. Farr) introduced the following bill; which was referred
to the Committee on Agriculture
_______________________________________________________________________
A BILL
Entitled, ``Amendments to the Perishable Agricultural Commodities Act,
1930''.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. DEFINITIONS.
(a) Section 1(b)(6) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499a) is hereby amended to read as follows:
``(b)(6) The term `dealer' means any person engaged in the business
of buying or selling in wholesale or jobbing quantities, including for
resale at retail, as defined by the Secretary, any perishable
agricultural commodity in interstate or foreign commerce, except that
(A) no producer shall be considered a `dealer' in respect to sales of
any such commodity of his own raising; and (B) no person buying any
commodity other than potatoes for canning and/or processing within the
State where grown shall be considered a `dealer' whether or not the
canned or processed product is to be shipped in interstate or foreign
commerce, unless such product is frozen or packed in ice or consists of
cherries in brine, within the meaning of paragraph (4) of this section.
Any person not considered as a `dealer' under clauses (A) or (B) may
elect to secure a license under the provisions of section 499c of this
title, and in such case and while the license is in effect such person
shall be considered as a `dealer'.''
(b) Section 1 of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499a) is hereby amended to add a new subsection (b)(11) and a
new subsection (b)(12), to read as follows:
``(11) The terms `collateral fees and expenses' mean any
promotional allowances, rebates, service or materials fees paid
or provided, directly or indirectly, in connection with the
distribution or marketing of any perishable agricultural
commodity.
``(12) The term `producer' means any person who raises
perishable agricultural commodities for sale of those
commodities in wholesale or jobbing quantities, under the
producer's own brands or labels, as defined by the
Secretary.''.
SEC. 2. UNFAIR TRADE PRACTICES.
(a) Section 2(1) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499b) is hereby amended to read as follows:
``(1) For any commission merchant, dealer, broker, or
producer to engage in or use any unfair, unreasonable,
discriminatory, or deceptive practice in connection with the
weighing, counting, or in any way determining the quantity of
any perishable agricultural commodity received, bought, sold,
shipped, or handled in interstate or foreign commerce;''.
(b) Section 2(4) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499b) is hereby amended to read as follows:
``(4) For any commission merchant, dealer, broker, or
producer to make, for a fraudulent purpose, any false or
misleading statement in connection with any transaction
involving any perishable agricultural commodity which is
received in interstate or foreign commerce by such commission
merchant, or bought or sold, or contracted to be bought, sold
or consigned, in such commerce by such dealer, or the purchase
or sale of which in such commerce is negotiated by such broker;
or to fail or refuse truly and correctly to account and make
full payment promptly in respect of any transaction in any such
commodity to the person with whom such transaction is had; or
to fail to disclose the grant or receipt of any collateral fee
or expense in connection with any cost-plus transaction in any
such commodity to the person with whom such transaction is had;
or to fail, without reasonable cause to perform any
specification or duty, express or implied, arising out of any
undertaking in connection with any such transaction; or to fail
to maintain the trust as required under section 499e(c) of this
title;''.
(c) Section 2(5) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499b) is hereby amended to read as follows:
``(5) For any commission merchant, dealer, broker, or
producer to misrepresent by word, act, mark, stencil, label,
statement, or deed, the character, kind, grade, quality,
quantity, size, pack, weight, condition, degree of maturity, or
State, country, or region of origin of any perishable
agricultural commodity received, shipped, sold, or offered to
be sold in interstate or foreign commerce: Provided, That any
commission merchant, dealer, broker, or producer who has
violated--
``(A) any provision of this paragraph may, with the
consent of the Secretary, admit the violation or
violations; or
``(B) any provision of this paragraph relating to a
misrepresentation by mark, stencil, or label shall be
permitted by the Secretary to admit the violation or
violations if such violation or violations are not
repeated or flagrant;
and pay, in the case of a violation under either clause (A) or
(B) of this paragraph, a monetary penalty not to exceed $2,000
in lieu of a formal proceeding for the suspension or revocation
of license, any payment so made to be deposited in the Treasury
of the United States as miscellaneous receipts: Provided
further, That a person other than the first licensee handling
misbranded perishable agricultural commodities shall not be
held liable for a violation of this paragraph by reason of the
conduct of another if that person did not have knowledge of the
violation or lacked the ability to correct the violation;''.
(d) Section 2(6) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499b) is hereby amended to strike the words ``any
commission merchant, dealer, or broker,'' and in lieu thereof insert
the words ``any commission merchant, dealer, broker, or producer,''.
(e) Section 2(7) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499b) is hereby amended to strike the words ``any
commission merchant, dealer, or broker,'' and in lieu thereof insert
the words ``any commission merchant, dealer, broker, or producer,''.
SEC. 3. LICENSE FEES.
Section 3(b) of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499c(b)) is amended to read as follows:
``Any person desiring any such license shall make application to
the Secretary. The Secretary may by regulation prescribe the
information to be contained in such application and to be furnished
thereafter. Upon filing the application, and annually thereafter, the
applicant shall pay such fees, both individually and in the aggregate,
as the Secretary determines, upon rulemaking pursuant to 5 U.S.C.
section 553, are necessary to meet the reasonably anticipated expenses
for administering this chapter and section 491, 493 to 497 of this
title. For fiscal year 1996, such individual license fee shall not
exceed $500, plus $200 for each branch or additional business facility
operated by the applicant in excess of nine such facilities, as
determined by the Secretary. For fiscal year 1996, total annual fees
for any applicant shall not exceed $2,000 in the aggregate. No retailer
shall be required to pay a license fee until the invoice cost of its
purchases of perishable agricultural commodities in any calendar year
are in excess of $400,000. The Secretary shall provide by regulation
that persons operating subsidiary organizations may consolidate those
organizations on the license of the parent organization. Such fee, when
collected, shall be deposited in the Treasury of the United States as a
special fund, without fiscal year limitation, to be designated as the
`Perishable Agricultural Commodities Act Fund' which shall be available
for all expenses necessary to the administration of this chapter, and
sections 491, 493 to 497 of this title, referred to above. License fees
paid into such fund by persons designated as `retailers' by the
Secretary shall not exceed more than 25 percent of all fees collected
in any fiscal year. Any reserve funds in the Perishable Agricultural
Commodities Act Fund may be invested by the Secretary in insured or
fully-collateralized interest-bearing accounts or, at the discretion of
the Secretary, by the Secretary of the Treasury in United States
Government debt instruments. Any interest earned on such reserve funds
shall be credited to the Perishable Agricultural Commodities Act Fund
and shall be available for the same purposes as the fees deposited in
such fund. The amount of money accumulated and on hand in the special
fund at the end of any fiscal year shall not exceed 33 percent of the
projected budget for the next following fiscal year. Financial
statements prescribed by the Director of the Office of Management and
Budget for the last completed fiscal year, and as estimated for the
current and ensuing fiscal years, shall be included in the budget as
submitted to the Congress annually.''.
SEC. 4. ISSUANCE OF LICENSE.
Section 4(a) of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499d(a)) is amended to read as follows:
``(a) Whenever an applicant has made application and paid any
applicable fee, the Secretary, except as provided elsewhere in this
chapter, shall issue to such applicant a license, which shall entitle
the licensee to do business as a commission merchant and/or dealer and/
or broker unless and until it is suspended or revoked by the Secretary
in accordance with the provisions of this chapter, or is automatically
suspended under section 499g(d) of this title, but said license shall
automatically terminate on any anniversary date thereof unless the
application has been made and any applicable fee has been paid:
Provided, That notice of the necessity of application and paying any
applicable fee shall be mailed at least thirty days before the
anniversary date: Provided further, That if the application is not made
and any applicable fee is not paid by the anniversary date the licensee
may obtain a renewal of that license at any time within thirty days by
making application and paying any applicable fee provided in section
499c(b) of this title, plus $5, which shall be deposited in the
Perishable Agricultural Commodities Act fund provided for by section
499c(b) of this title: Provided further, That the license of any
licensee shall terminate upon said licensee, or in case the licensee is
a partnership, a partner being discharged as a bankrupt, unless the
Secretary finds upon examination of the circumstances of such
bankruptcy, which he shall examine if requested to do so by said
licensee, that such circumstances do not warrant such termination.''.
SEC. 5. LIABILITY TO PERSON INJURED.
(a) Section 5 of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499e(a)) is hereby amended to strike the words ``any
commission merchant, dealer, or broker,'' and in lieu thereof insert
the words ``any commission merchant, dealer, broker, or producer,''.
(b) Section 5 of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499e(c)(3)) is hereby amended to add at the end thereof the
following: ``The Secretary of Agriculture shall require persons who do
not pay license fees under section 499c of this title to pay a filing
fee for each notice of intent to preserve trust benefits filed pursuant
to section 499e of this title. For fiscal year 1996, such filing fee
shall be set at $20. Thereafter, such fee shall be set by the Secretary
upon rulemaking pursuant to 5 U.S.C. section 553, in order to meet the
reasonably anticipated expenses for administering direct and indirect
costs for such persons' participation in proceedings under this
chapter.''.
SEC. 6. COMPLAINT AND INVESTIGATION.
(a) Section 6(a) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499f(a)) is hereby amended to designate existing section
(a) as section (a)(1), and to strike the words ``any commission
merchant, dealer, or broker,'' and in lieu thereof insert the words
``any commission, merchant, dealer, broker, or producer,'' in the two
instances in which it appears in that subsection.
(b) Section 6(a) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499f(a)) is hereby amended to add at the end thereof a
new subsection (a)(2), a new subsection (a)(3), and a new subsection
(a)(4), to read as follows:
``(2) The Secretary shall require all persons, other than
Federal employees acting within the scope of their official
duties, who submit informal complaints to the Secretary under
this section, alleging a violation of section 2 of the Act (7
U.S.C. 499b), to include a filing fee. For licensed persons
that have also paid an annual license fee, such filing fee
shall be $60 per petition. For all other persons, such fee
shall be $100 per petition. If the Secretary determines under
section 6(a) of the Act (7 U.S.C. 499f(a)), that the facts
contained in a petition described in such section warrant
further action, the person or persons submitting the petition
shall submit to the Secretary a further filing fee. For
licensed persons that have also paid an annual license fee,
such filing fee shall be $300 per petition. For all other
persons, other than Federal employees acting within the scope
of their official duties, such fee shall be $500 per petition.
The Secretary may not forward a copy of a complaint to the
commission merchant, dealer, broker, or producer involved until
after the Secretary receives the required filing fees.
``(3) In determining the amount of damages incurred by a
prevailing party in a formal reparation proceeding under
section 7 of this Act (7 U.S.C. 499g), the Secretary shall
assess the amount of filing fees against the losing party:
Provided, That a prevailing party shall have any filing fees
paid by it refunded as part of any formal reparation award.''.
(c) Section 6(b) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499f(b)) is hereby amended to strike the words ``any
commission merchant, dealer, or broker,'' and in lieu thereof insert
the words ``any commission merchant, dealer, broker, or producer,'' in
two instances in which it appears in that subsection.
(d) Section 6(d) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499f(d)) is hereby amended to strike the words ``any
commission merchant, dealer, or broker,'' and in lieu thereof insert
the words ``any commission merchant, dealer, broker, or producer''.
SEC. 7. GROUNDS FOR SUSPENSION OR REVOCATION OF LICENSE; CIVIL
PENALTIES.
(a) Section 8(a) of the Perishable Agricultural Commodities Act,
1930 (7 U.S.C. 499h(a)) is hereby amended to strike the words ``any
commission merchant, dealer, or broker,'' and in lieu thereof insert
the words ``any commission merchant, dealer, broker, or producer''.
(b) Section 8 of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499h) is hereby amended to add a new subsection (b) to read
as follows:
``(b) Whenever the Secretary determines, as provided by section
499f of this title, that any commission merchant, dealer, broker, or
producer has violated section 499b, 499h(c), or 499h(d) of this title,
the Secretary may assess a monetary penalty not to exceed $2,000 for
each violative transaction or each day the violation continues, to be
deposited in the Treasury of the United States as miscellaneous
receipts.''.
(c) Section 8 of the Perishable Agricultural Commodities Act, 1930
(7 U.S.C. 499h) is hereby amended by redesignating existing subsection
(b) as subsection (c), existing subsection (c) as subsection (d), and
existing subsection (d) as subsection (e).
(d) Redesignated section 8(e) of the Perishable Agricultural
Commodities Act, 1930 (7 U.S.C. 499h(e)) is hereby amended to strike
the words ``any commission merchant, dealer, or broker,'' and in lieu
thereof insert the words ``any commission merchant, dealer, broker, or
producer''.
SEC. 8. PRESERVATION OF BUSINESS REPUTATION.
Section 13 of the Act (7 U.S.C. 499m) is hereby amended to add a
new subsection (g), to read as follows:
``(g) The Secretary is directed, during the course of any
investigation or inquiry under this title, to take due account of
preservation of the business reputation of any person under
investigation.''.
SEC. 9.
Section 15 of the Perishable Agricultural Commodities Act, 1930 (7
U.S.C. 499o) is hereby amended to redesignate the existing provisions
as subsection (a), and to add a new subsection (b) and a new subsection
(c), to read as follows:
``(b) Report and Investigation.--The Secretary shall investigate
and issue a report on industry practices requiring or soliciting
collateral fees and expenses by or to any commission merchant, dealer,
broker, or producer in connection with any transaction in perishable
agricultural commodities. Such report shall be made to the House
Committee on Agriculture and the Senate Committee on Agriculture,
Nutrition, and Forestry, within one hundred and eighty days of
enactment of this legislation.
``(c) Disclosure of Collateral Fees and Expenses; Rulemaking.--If
the investigation and report required by this section conclude that
such practices conform to the laws of the United States, the Secretary
shall promulgate regulations regarding the sufficiency of disclosure by
or to any commission merchant, dealer, broker, or producer, of the
grant or receipt of any collateral fee or expense in connection with
any cost-plus transaction in perishable agricultural commodities:
Provided, That disclosure shall be considered sufficient if it is
conspicuously made on the face of the invoice or in any underlying
contract covering the transaction: Provided further, That no commission
merchant, dealer, broker, or producer, nor any individual responsibly
connected with any such commission merchant, dealer, broker, or
producer shall be the subject to any licensure, reparation, or trust
enforcement proceeding under this chapter for any act or omission
concerning the disclosure of any collateral fee or expense, taken or
required to be taken prior to the effective date of regulations
required under this subsection.''.
SEC. 10. LIABILITY OF LICENSEES FOR ACTS AND OMISSIONS OF AGENTS.
Section 16 of the Perishable Agricultural Commodities Act, 1930 (7
U.S.C. 499p) is hereby amended to strike the words ``any commission
merchant, dealer, or broker,'' and in lieu thereof insert the words
``any commission merchant, dealer, broker, or producer,'' in the two
instances in which it appears in that section.
SEC. 11. REVIEW OF PROCEDURES AND POLICIES.
The Perishable Agricultural Commodities Act, 1930 is hereby amended
by adding at the end thereof the following new section (7 U.S.C. 499t):
``review of policies and procedures.
``(a) The Secretary is directed to conduct an annual review of
enforcement procedures, policies, and priorities regarding reparation
proceedings, disciplinary complaints, and the operation of the trust,
as well as proceedings under section 499h(c), to identify opportunities
for efficiency and cost reduction in such proceedings. The Secretary
shall invite public participation and input into such review.
``(b) The Secretary is directed to submit, to the House Committee
on Agriculture and the Senate Committee on Agriculture, Nutrition, and
Forestry, no later than September 30 of each year, a projection of
enforcement priorities for the next twelve months. The Secretary is
further directed to submit, to the House Committee on Agriculture and
the Senate Committee on Agriculture, Nutrition, and Forestry, no later
than September 30 of each year in which a biennial review is conducted,
a report containing the results of its review and recommendations based
on such results. Such biennial report shall describe reparation
proceedings, disciplinary complaints, and the operation of the trust
during the previous twenty-four months.''.
SEC. 12. EFFECTIVE DATE.
This Act shall be effective upon enactment.
<all>
HR 1103 IH----2