[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4321 Introduced in House (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.
                                 <all>