[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3404 Introduced in Senate (IS)]

<DOC>






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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