[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3404 Introduced in Senate (IS)]
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115th CONGRESS
2d Session
S. 3404
To impose a moratorium on large agribusiness, food and beverage
manufacturing, and grocery retail mergers, and to establish a
commission to review large agriculture, food and beverage
manufacturing, and grocery retail mergers, concentration, and market
power.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 28, 2018
Mr. Booker introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To impose a moratorium on large agribusiness, food and beverage
manufacturing, and grocery retail mergers, and to establish a
commission to review large agriculture, food and beverage
manufacturing, and grocery retail mergers, concentration, and market
power.
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 ``Food and Agribusiness Merger
Moratorium and Antitrust Review Act of 2018''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Concentration in the food and agricultural economy,
including mergers, acquisitions, and other combinations and
alliances among suppliers, packers, integrators, other food
processors, distributors, and retailers has been accelerating
at a rapid pace since the 1980s, and particularly since the
2007 through 2009 recession.
(2) The trend toward greater concentration in food and
agriculture has important and far reaching implications not
only for family farmers, but also for the food we eat, the
communities we live in, and the integrity of the natural
environment upon which we all depend.
(3) In the past three decades, the top 4 largest pork
packers have seized control of 71 percent of the market, up
from 36 percent. Over the same period, the top 4 beef packers
have expanded their market share from 32 percent to 85 percent.
The top 4 flour millers have increased their market share from
40 percent to 64 percent. The market share of the top 4 soybean
crushers has jumped from 54 percent to 79 percent, and the top
4 wet corn processors control of the market has increased from
63 percent to 86 percent.
(4) Today the top 4 sheep, poultry, and fluid milk
processors now control 57 percent, 53 percent, and 50 percent
of the market, respectively.
(5) The top 4 grain companies today control nearly 90
percent of the global grain trade.
(6) During the past 2 years there has been a wave of
consolidation among global seed and crop-chemical firms, 3
companies now control nearly \2/3\ of the world's commodity
crop seeds. Those same 3 companies now also control nearly 70
percent of all agricultural chemicals and pesticides.
(7) In the United States, the 4 largest corn seed sellers
accounted for 85 percent of the market in 2015, up from 60
percent in 2000. Over the past 20 years, the cost for an acre's
worth of seeds for an average corn farmer has nearly
quadrupled, and the cost of fertilizer has more than doubled.
Yet corn yields increased only 36 percent over that time, and
the price received for the sale of a bushel of corn increased
only 31 percent.
(8) A handful of firms dominate the processing of every
major commodity. Many of them are vertically integrated, which
means that they control successive stages of the food chain,
from inputs to production to distribution. The growing number
and scale of cross-border agribusiness and food mergers have
put foreign firms, often with considerable government backing,
into prominent and even dominant positions in the United States
beef, hog, poultry, seed, fertilizer, and agrichemical sectors.
(9) Growing concentration of the agricultural sector has
restricted choices for farmers trying to sell their products.
As the bargaining power of agribusiness firms over farmers
increases, concentrated agricultural commodity markets are
stacked against the farmer, with buyers of agricultural
commodities often possessing regional dominance in the form of
oligopsony or monopsony relative to sellers of such
commodities.
(10) The high concentration and consolidation of buyers in
agricultural markets has resulted in the thinning of both cash
and futures markets, thereby allowing dominant buyers to
leverage their market shares to move those markets to the
detriment of family farmers and ranchers.
(11) Buyers with oligopsonistic or monopsonistic power have
incentives to engage in unfair and discriminatory acts that
cause farmers to receive less than a competitive price for
their goods. At the same time, some Federal courts have
incorrectly required a plaintiff to show harm to competition
generally, in addition to harm to the individual farmer, when
making a determination that an unfair, unjustly discriminatory,
deceptive, or preferential act exists under the Packers and
Stockyards Act of 1921.
(12) The farmer's share of every retail dollar has
plummeted from 41 percent in 1950, to approximately 15 percent
today, while the profit share for farm input, marketing, and
processing companies has risen.
(13) While agribusiness conglomerates are posting record
earnings, farmers are facing desperate times. Since 2013, net
farm income for United States farmers has fallen by more than
half and median on farm income was negative in 2017 and is
expected to be negative in 2018.
(14) The benefits of low commodity prices are not being
passed on to American consumers. The gap between what shoppers
pay for food and what farmers are paid is growing wider.
(15) Concentration, low prices, anticompetitive practices,
and other manipulations and abuses of the agricultural economy
are driving small family farmers out of business. Farmers are
going bankrupt or giving up, and few are taking their places;
more farm families are having to rely on other jobs to stay
afloat. Eighty-two percent of farm household income is expected
to come from off farm work this year, up from 53 percent in
1960.
(16) Seventy-five percent of America's farmed cropland is
now controlled by 12 percent of farms, and the number of
farmers leaving the land will continue to increase unless and
until these trends are reversed.
(17) The decline of small family farms undermines the
economies of rural communities across America; it has pushed
Main Street businesses, from equipment suppliers to small
banks, out of business or to the brink of insolvency.
(18) Increased concentration in the agribusiness sector has
a harmful effect on the environment; corporate hog farming, for
example, threatens the integrity of local water supplies and
creates noxious odors in neighboring communities. Concentration
also can increase the risks to food safety and limit the
biodiversity of plants and animals.
(19) The decline of family farming poses a direct threat to
American families and family values, by subjecting farm
families to turmoil and stress. Farm advocates across the
country are reporting an increase in farmer suicides over the
past several years.
(20) The decline of family farming causes the demise of
rural communities, as stores lose customers, churches lose
congregations, schools and clinics become under-used, career
opportunities for young people dry up, and local inequalities
of wealth and income grow wider.
(21) These developments are not the result of inevitable
market forces. Its problems arise rather from policies made in
Washington, including farm, antitrust, and trade policies.
(22) Past congressional action to remediate market failure,
such as enacting country-of-origin labeling to provide
transparency for domestic farmers, ranchers, and consumers
regarding agricultural commodity origins, have been overturned
for key commodities by oligopolistic conglomerates that use
undifferentiated imports to reduce domestic farm prices.
(23) To restore competition in the agricultural economy,
and to increase the bargaining power and enhance economic
prospects for family farmers, the trend toward concentration
must be reversed.
SEC. 3. DEFINITIONS.
In this Act:
(1) Agricultural input supplier.--The term ``agricultural
input supplier'' means any person (excluding agricultural
cooperatives) engaged in the business of selling, in interstate
or foreign commerce, any product to be used as an input
(including seed, germ plasm, hormones, antibiotics, fertilizer,
and chemicals, but excluding farm machinery) for the production
of any agricultural commodity, except that no person shall be
considered an agricultural input supplier if sales of such
products are for a value less than $10,000,000 per year.
(2) Broker.--The term ``broker'' means any person engaged
in the business of negotiating sales and purchases of any
agricultural commodity in interstate or foreign commerce for or
on behalf of the vendor or the purchaser, except that no person
shall be considered a broker if the only sales of such
commodities are for a value less than $10,000,000 per year.
(3) Commission merchant.--The term ``commission merchant''
means any person engaged in the business of receiving in
interstate or foreign commerce any agricultural commodity for
sale, on commission, or for or on behalf of another, except
that no person shall be considered a commission merchant if the
only sales of such commodities are for a value less than
$10,000,000 per year.
(4) Dealer.--The term ``dealer'' means any person
(excluding agricultural cooperatives) engaged in the business
of buying, selling, or marketing agricultural commodities in
interstate or foreign commerce, except that--
(A) no person shall be considered a dealer with
respect to sales or marketing of any agricultural
commodity of that person's own raising; and
(B) no person shall be considered a dealer if the
only sales of such commodities are for a value less
than $10,000,000 per year.
(5) Integrator.--The term ``integrator'' means an entity
that contracts with farmers for grower services to raise
chickens or hogs to slaughter size and weight. The integrator
owns the chickens or hogs, supplies the feed, slaughters, and
further processes the poultry or pork.
(6) Processor.--The term ``processor'' means any person
(excluding agricultural cooperatives) engaged in the business
of handling, preparing, or manufacturing (including
slaughtering and food and beverage manufacturing) of an
agricultural commodity, or the products of such agricultural
commodity, for sale or marketing for human consumption, except
that no person shall be considered a processor if the only
sales of such products are for a value less than $10,000,000
per year.
(7) Retailer.--The term ``retailer'' means any person
(excluding agricultural cooperatives) licensed as a retailer
under the Perishable Agriculture Commodities Act of 1930 (7
U.S.C. 499a(b)), except that no person shall be considered a
retailer if the only sales of such products are for a value
less than $10,000 per year.
TITLE I--MORATORIUM ON LARGE AGRIBUSINESS, FOOD AND BEVERAGE
MANUFACTURING, AND GROCERY RETAIL MERGERS
SEC. 101. MORATORIUM ON LARGE AGRIBUSINESS, FOOD AND BEVERAGE
MANUFACTURING, AND GROCERY RETAIL MERGERS.
(a) In General.--
(1) Moratorium.--Until the date referred to in paragraph
(2) and except as provided in subsection (b)--
(A) no dealer, processor, commission merchant,
agricultural input supplier, broker, or operator of a
warehouse of agricultural commodities or retailer with
annual net sales or total assets of more than
$160,000,000 shall merge or acquire, directly or
indirectly, any voting securities or assets of any
other dealer, processor, commission merchant,
agricultural input supplier, broker, or operator of a
warehouse of agricultural commodities or retailer with
annual net sales or total assets of more than
$16,000,000; and
(B) no dealer, processor, commission merchant,
agricultural input supplier, broker, or operator of a
warehouse of agricultural commodities or retailer with
annual net sales or total assets of more than
$16,000,000 shall merge or acquire, directly or
indirectly, any voting securities or assets of any
other dealer, processor, commission merchant,
agricultural input supplier, broker, or operator of a
warehouse of agricultural commodities or retailer with
annual net sales or total assets of more than
$160,000,000 if the acquiring person would hold--
(i) 15 percent or more of the voting
securities or assets of the acquired person; or
(ii) an aggregate total amount of the
voting securities and assets of the acquired
person in excess of $15,000,000.
(2) Date.--The date referred to in this paragraph is the
earlier of--
(A) the effective date of comprehensive
legislation--
(i) addressing the problem of market
concentration in the food and agricultural
sector; and
(ii) containing a section stating that the
legislation is comprehensive legislation as
provided in section 101 of the Food and
Agribusiness Merger Moratorium and Antitrust
Review Act of 2018; or
(B) the date that is 18 months after the date of
enactment of this Act.
(b) Waiver Authority.--The Attorney General shall have authority to
waive the moratorium imposed by subsection (a) only under extraordinary
circumstances, such as insolvency or similar financial distress of 1 of
the affected parties.
(c) Exemptions.--The classes of transactions described in section
7A(c) of the Clayton Act (15 U.S.C. 18a(c)) are exempt from subsection
(a).
(d) Avoidance.--Any transaction or other device entered into or
employed for the purpose of avoiding the moratorium contained in
subsection (a) shall be disregarded, and the application of the
moratorium shall be determined by applying subsection (a) to the
substance of the transaction.
(e) Rulemaking.--The Attorney General shall promulgate regulations
that the Attorney General determines are necessary to implement this
section.
TITLE II--AGRICULTURE CONCENTRATION AND MARKET POWER REVIEW COMMISSION
SEC. 201. ESTABLISHMENT OF COMMISSION.
(a) Establishment.--There is established a commission to be known
as the Food and Agriculture Concentration and Market Power Review
Commission (hereafter in this title referred to as the ``Commission'').
(b) Purposes.--The purpose of the Commission is to--
(1) study the nature and consequences of concentration in
America's food and 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 Chairs of the
Committee on Agriculture, Nutrition, and Forestry and
of the Committee on the Judiciary.
(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 and of the Committee on the Judiciary.
(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 Chairs of
the Committee on Agriculture and of the Committee on
the Judiciary.
(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 and of
the Committee on the Judiciary.
(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 food 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.
SEC. 202. DUTIES OF THE COMMISSION.
(a) In General.--The Commission shall be responsible for examining
the nature, the causes, and consequences concentration in America's
agricultural economy in the broadest possible terms.
(b) Issues To Be Addressed.--The study shall include an examination
of the following matters:
(1) The nature and extent of concentration in the food and
agricultural sector, including food production, manufacturing,
transportation, processing, distribution, marketing, retailing,
and farm inputs such as machinery, fertilizer, and seeds.
(2) Current trends in concentration of the food and
agricultural sector and what this sector is likely to look like
in the near and longer term future.
(3) The effects of rising concentration on suppliers and
farmers, including independent and contract farmers, with
respect to--
(A) competition in markets for their products and
services;
(B) income and benefit levels;
(C) income distribution;
(D) income volatility; and
(E) other material benefits.
(4) The impacts of this concentration upon rural
communities, rural economic development, and the natural
environment.
(5) The impacts of concentration in the seed industry on
genetic diversity in farm fields and any related impacts on
food security.
(6) The impacts of this concentration upon food shoppers,
including the reasons that low farm prices have not resulted in
corresponding drops in supermarket prices.
(7) Whether farming is approaching a scale that is larger
than necessary from the standpoint of productivity.
(8) The effect of current laws and administrative practices
in supporting and encouraging this concentration.
(9) Whether the existing antitrust laws provide adequate
safeguards against, and remedies for, the impacts of
concentration upon family farms, the communities they comprise,
and the food shoppers of this Nation.
(10) Accurate and reliable data on the national and
international markets shares of multinational agribusinesses,
and the portion of their sales attributable to exports.
(11) Barriers that inhibit entry of new competitors into
markets for the processing of agricultural commodities, such as
the meat packing industry.
(12) The extent to which developments, such as packer
ownership of livestock, formula pricing, marketing agreements,
production contracting, forward contracting, and vertical
integration tend to give processors, agribusinesses,
integrators, and other buyers of agricultural commodities
additional market power over farmers and suppliers in local
markets.
(13) Such related matters as the Commission determines to
be important.
SEC. 203. FINAL REPORT.
(a) In General.--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--
(1) the findings and conclusions of the Commission
described in section 202; and
(2) recommendations for addressing the problems identified
as part of the Commission's analysis.
(b) Separate Views.--Any member of the Commission may submit
additional findings and recommendations as part of the final report.
SEC. 204. POWERS OF COMMISSION.
(a) 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 title. The Commission shall hold at least 1 or
more hearings in Washington, DC, and 4 in different agriculture regions
of the United States.
(b) 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
title. Upon request of the Chairperson of the Commission, the head of
such department or agency shall furnish such information to the
Commission.
(c) 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.
SEC. 205. COMMISSION PERSONNEL MATTERS.
(a) 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.
(b) 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.
(c) Staff.--
(1) 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.
(2) 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.
(d) 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.
(e) 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.
SEC. 206. 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.
SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated [$2,000,000] to the
Commission as required by this title to carry out the provisions of
this title.
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