[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Proposed Rules]
[Pages 25969-25970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10447]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / 
Proposed Rules  

[[Page 25969]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 900

[Docket No. AMS-FV-14-0072; FV14-900-2 PR]


Clarification of United States Antitrust Laws, Immunity, and 
Liability Under Marketing Order Programs

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposal invites comments on an amendment to the general 
regulations for federal fruit, vegetable, and specialty crop marketing 
agreements and marketing orders that would accentuate the applicability 
of U.S. antitrust laws to marketing order programs' domestic and 
foreign activities. This action would also advise marketing order board 
and committee members and personnel of the restrictions, limitations, 
and liabilities imposed by those laws.

DATES: Comments must be received by June 5, 2015.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number 
and the date and page number of this issue of the Federal Register and 
will be made available for public inspection in the Office of the 
Docket Clerk during regular business hours or can be viewed at: http://www.regulations.gov. All comments submitted in response to this 
proposal will be included in the record and will be made available to 
the public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing 
Specialist, or Michelle P. Sharrow, Rulemaking Branch Chief, Marketing 
Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 
1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under the general 
regulations for federal marketing agreements and orders (7 CFR part 
900), effective under the Agricultural Marketing Agreement Act of 1937, 
as amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' 
This action would add a new Sec.  900.202 (Restrictions applicable to 
Committee personnel) under ``Subpart--Miscellaneous Regulations'' to 
accentuate the applicability of U.S. antitrust laws to marketing order 
program activities.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866, 13563, and 13175.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This proposed rule is not intended to have retroactive 
effect.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    Federal marketing order boards and committees have always been 
subject to U.S. antitrust laws. These boards and committees work with 
USDA in administering marketing order programs which, among other 
things, authorizes them, with approval of the Secretary, to establish 
and promote a program's domestic and foreign marketing activities. The 
Act immunizes board and committee members and employees from 
prosecution under U.S. antitrust laws so long as their conduct is 
authorized by the Act or provisions of a marketing order. This proposal 
is intended to accentuate the applicability of U.S. antitrust laws to 
marketing order board and committee members and personnel in light of 
changing global marketing and production trends as well as to advise 
boards and committees of the restrictions, limitations, and liabilities 
of those laws. Under these laws, Committee members and employees may 
not engage in any unauthorized agreement or concerted action that 
unreasonably restrains United States domestic or foreign commerce. 
Failing to adhere to antitrust laws may lead to prosecution under the 
antitrust laws by the United States Department of Justice and/or suit 
by injured private persons seeking treble damages, and may also result 
in expulsion of members from the Committee or termination of employment 
with the Committee.

Initial Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this action on small entities. 
Accordingly, AMS has prepared this initial regulatory flexibility 
analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially

[[Page 25970]]

small entities acting on their own behalf.
    There are approximately 1,090 handlers who are subject to 
regulation under the 28 federal marketing order programs and 
approximately 33,100 producers in the regulated areas. Small 
agricultural service firms are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$7,000,000, and small agricultural producers are defined as those 
having annual receipts of less than $750,000 (13 CFR 121.201). USDA 
estimates that many of these handlers and producers may be classified 
as small entities. This rule would accentuate the applicability of U.S. 
antitrust laws to marketing order programs' domestic and foreign 
activities. This action would also advise marketing order board and 
committee members and personnel of the restrictions, limitations, and 
liabilities imposed by those laws.

Paperwork Reduction Act

    This rule contains no information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rule.
    AMS has discussed the changes to the regulations with all marketing 
order board and committee staff that it oversees. Moreover, AMS 
conducted refresher training on antitrust laws for marketing order 
board and committee staff and officers at the Marketing Order 
Management Conference on September 23-24, 2014. Finally, interested 
persons are invited to submit comments on this proposed rule, including 
the regulatory and informational impacts of this action on small 
businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Jeffrey Smutny at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. Thirty days is deemed appropriate because 
federal marketing order boards and committees have always been subject 
to U.S. antitrust laws. AMS is simply updating the regulations to 
reemphasize the applicability of U.S. antitrust laws in light of global 
marketing and production trends. All written comments timely received 
will be considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 900

    Administrative practice and procedure, Freedom of information, 
Marketing agreements, Reporting and recordkeeping requirements.

    For the reasons set forth above, 7 CFR part 900 is proposed to be 
amended as follows:

PART 900--GENERAL REGULATIONS

0
1. The authority citation for 7 CFR part 900 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674 and 7 U.S.C. 7401.

Subpart--Miscellaneous Regulations

0
2. The authority citation for Subpart--Miscellaneous Regulations 
continues to read as follows:

    Authority: Sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610.

0
3. Add new section 900.202 to read as follows:


Sec.  900.202  Restrictions applicable to Committee personnel.

    Members and employees of Federal marketing order boards and 
committees are immune from prosecution under the United States 
antitrust laws only insofar as their conduct in administering the 
respective marketing order is authorized by the Agricultural Marketing 
Agreement Act of 1937, 7 U.S.C. 601-674, or the provisions of the 
respective order. Under the antitrust laws, Committee members and 
employees may not engage in any unauthorized agreement or concerted 
action that unreasonably restrains United States domestic or foreign 
commerce. For example, Committee members and employees have no 
authority to participate, either directly or indirectly, whether on an 
informal or formal, written or oral basis, in any bilateral or 
international undertaking or agreement with any competing foreign 
producer or seller or with any foreign government, agency, or 
instrumentality acting on behalf of competing foreign producers or 
sellers to (a) raise, fix, stabilize, or set a floor for commodity 
prices, or (b) limit the quantity or quality of commodity imported into 
or exported from the United States. Participation in any such 
unauthorized agreement or joint undertaking could result in prosecution 
under the antitrust laws by the United States Department of Justice 
and/or suit by injured private persons seeking treble damages, and 
could also result in expulsion of members from the Committee or 
termination of employment with the Committee.

    Dated: April 30, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-10447 Filed 5-5-15; 8:45 am]
 BILLING CODE 3410-02-P