SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Competitive and Fair Agricultural Markets Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--AGRICULTURAL FAIR PRACTICES
Sec. 101. Agricultural fair practices.
Sec. 102. Application.
TITLE II--PACKERS AND STOCKYARDS
Sec. 201. Investigation of live poultry dealers.
Sec. 202. No competitive injury requirement.
Sec. 203. Attorneys' fees.
Sec. 204. Appointment of outside counsel.
Sec. 205. Regulations.
TITLE I--AGRICULTURAL FAIR PRACTICES
SEC. 101. AGRICULTURAL FAIR PRACTICES.
The Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.) is amended to read as follows:
`SEC. 1. SHORT TITLE; TABLE OF CONTENTS.
`(a) In General- This Act may be cited as the `Agricultural Fair Practices Act of 1967'.
`(b) Table of Contents- The table of contents of this Act is as follows:
`Sec. 1. Short title; table of contents.
`Sec. 2. Definitions.
TITLE I--AGRICULTURAL TRADE PRACTICES
`Sec. 101. Office of Special Counsel for Competition Matters.
TITLE II--PROHIBITIONS ON ANY UNFAIR, UNJUSTLY DISCRIMINATORY, OR DECEPTIVE ACT, DEVICE, OR ANTI-COMPETITIVE PRACTICE IN AGRICULTURAL COMMERCE
`Sec. 201. Prohibitions involving crops.
`Sec. 202. Prohibitions involving producer associations and production contracts.
`Sec. 203. Production contracts and marketing contracts.
`Sec. 204. Production contracts.
`Sec. 205. Authority of Secretary to promulgate rules and regulations.
`Sec. 206. Enforcement.
`Sec. 207. Effect on other laws.
`Sec. 208. Assignment of association dues and fees.
`Sec. 209. Severability.
SEC. 2. DEFINITIONS.
`In this Act:
`(1) AGRICULTURAL COMMODITY-
`(A) IN GENERAL- Except as provided in subparagraph (B), the term `agricultural commodity' has the meaning given the term in section 102 of the Agricultural Trade Act of 1978 (7 U.S.C. 5602).
`(B) EXCEPTION- In section 201, the term `agricultural commodity'--
`(i) means a crop; and
`(ii) does not include a perishable agricultural commodity, as that term is defined in section 1(b) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499a(b)).
`(2) AGRICULTURAL COOPERATIVE- The term `agricultural cooperative' means an association of persons engaged in the production, marketing, or processing of an agricultural commodity that meets the requirements of the Act entitled `An Act to authorize association of producers of agricultural products' (commonly known as the `Capper-Volstead Act') (7 U.S.C. 291 et seq.).
`(3) ASSOCIATION OF PRODUCERS-
`(A) IN GENERAL- The term `association of producers' means an association of producers of agricultural commodities that engages in the marketing, bargaining, shipping, or processing of agricultural commodities or of agricultural services.
`(B) INCLUSIONS- The term `association of producers' includes--
`(i) an organization dedicated to promoting the common interest and general welfare of producers of agricultural commodities;
`(ii) a cooperative association (as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a))); and
`(iii) an association described in the first section of the Act entitled `An Act to authorize association of producers of agricultural products' (commonly known as the `Capper-Volstead Act') (7 U.S.C. 291).
`(4) CAPITAL INVESTMENT- The term `capital investment' means an investment in--
`(A) a structure, such as a building or manure storage structure; or
`(B) machinery or equipment associated with producing an agricultural commodity that has a useful life of more than 1 year.
`(5) 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.
`(6) CONTRACT LIVESTOCK FACILITY- The term `contract livestock facility' means a facility in which livestock or a product of live livestock is produced under a production contract by a contract producer.
`(7) CONTRACTOR- The term `contractor' means a person that, in accordance with a production contract, owns, or will own, an agricultural commodity that is produced by a contract producer.
`(8) CONTRACT PRODUCER- The term `contract producer' means a producer that produces an agricultural commodity under a production contract.
`(9) COVERED PERSON- The term `covered person' means a dealer, handler, contractor, processor, or commission merchant.
`(10) CROP- The term `crop' means an agricultural commodity produced from a plant.
`(11) DEALER- The term `dealer' means any person engaged in the business of buying, selling, or marketing agricultural commodities in interstate or foreign commerce.
`(12) DEPARTMENT- The term `Department' means the Department of Agriculture.
`(13) HANDLER- The term `handler' means any person engaged in the business or practice of--
`(A) acquiring agricultural commodities from producers or associations of producers for processing or sale;
`(B) grading, packaging, handling, storing, or processing agricultural commodities received from producers or associations of producers;
`(C) contracting or negotiating contracts or other arrangements, written or oral, with or on behalf of producers or associations of producers with respect to the production or marketing of any agricultural commodity; or
`(D) acting as an agent or broker for a handler in the performance of any function or act described in subparagraph (A), (B), or (C).
`(14) INVESTMENT REQUIREMENT- The term `investment requirement' means a provision in a production contract that requires a contract producer to make a capital investment associated with producing an agricultural commodity that, but for the production contract, the contract producer would not have made.
`(15) LIVESTOCK- The term `livestock' has the meaning given the term in section 602 of the Agricultural Act of 1949 (7 U.S.C. 1471).
`(16) MARKETING CONTRACT- The term `marketing contract' means a written agreement between a covered person and a producer for the purchase of an agricultural commodity produced or raised by the producer.
`(17) PERSON- The term `person' includes an individual, partnership, corporation, limited liability company, limited partnership, or association.
`(18) PROCESSOR- The term `processor' means--
`(A) any person (other than an agricultural cooperative) engaged in the business of handling, preparing, or manufacturing (including slaughtering) an agricultural commodity or the products of an agricultural commodity for sale or marketing in interstate or foreign commerce; and
`(B) an agricultural cooperative that handles, prepares, or manufactures (including slaughtering) agricultural commodities of its members' own production.
`(19) PRODUCE- The term `produce' means--
`(A) to provide feed or services relating to the care and feeding of livestock, including milking dairy cattle and storing raw milk; or
`(B) to plant, raise, harvest, and store a crop, including preparing soil for planting and applying a fertilizer, soil conditioner, or pesticide to a crop.
`(20) PRODUCER- The term `producer' means a person engaged in the production of an agricultural commodity as a farmer, planter, rancher, dairyman, poultryman, or fruit, vegetable, or nut grower.
`(21) PRODUCTION CONTRACT-
`(A) IN GENERAL- The term `production contract' means a written agreement that provides for--
`(i) the production of an agricultural commodity by a contract producer; or
`(ii) the provision of a management service relating to the production of an agricultural commodity by a contract producer.
`(B) INCLUSIONS- The term `production contract' includes--
`(i) a contract between a contractor and a contract producer for the production of an agricultural commodity; or
`(ii) a contract between a contractor and a contract producer for the provision of a management service in the production of an agricultural commodity.
`(22) SECRETARY- The term `Secretary' means the Secretary of Agriculture.
TITLE I--AGRICULTURAL TRADE PRACTICES
SEC. 101. OFFICE OF SPECIAL COUNSEL FOR COMPETITION MATTERS.
`(a) Establishment-
`(1) IN GENERAL- There is established within the Department an office to be known as the `Office of Special Counsel for Competition Matters'.
`(2) DUTIES- The Office shall--
`(A) investigate and prosecute violations of this Act and the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.);
`(B) serve as a liaison between, and act in consultation with, the Department and the Department of Justice and the Federal Trade Commission with respect to competition and trade practices in the food and agricultural sector; and
`(C) maintain a staff of attorneys and other professionals with the appropriate expertise.
`(b) Special Counsel for Competition Matters-
`(1) IN GENERAL- The Office shall be headed by the Special Counsel for Competition Matters, who shall be appointed by the President, by and with the advice and consent of the Senate.
`(2) PROSECUTORIAL AUTHORITY- Notwithstanding title 28, United States Code, the Special Counsel for Competition Matters shall have the authority to bring any civil or administrative action authorized under this Act or the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.).
TITLE II--PROHIBITIONS ON ANY UNFAIR, UNJUSTLY DISCRIMINATORY, OR DECEPTIVE ACT, DEVICE, OR ANTI-COMPETITIVE PRACTICE IN AGRICULTURAL COMMERCE
SEC. 201. PROHIBITIONS INVOLVING CROPS.
`(a) Prohibition on Any Unfair, Unjustly Discriminatory, or Deceptive Act, Device, or Anti-Competitive Practice- Any unfair, unjustly discriminatory, or deceptive act, device, or anti-competitive practice in or affecting the marketing, receiving, purchasing, sale, or contracting for the production of any agricultural commodity by any covered person shall be unlawful.
`(b) Other Unlawful Acts- It shall be unlawful for any covered person--
`(1) to make or give any undue or unreasonable preference or advantage to any particular person or locality in any respect, or subject any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect;
`(2) to sell or otherwise transfer to or for any other person, or buy or otherwise receive from or for any other person, any article for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce;
`(3) to engage in any course of business or do any act for the purpose or with the effect or manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce;
`(4) to conspire, combine, agree, or arrange with any other person--
`(A) to apportion territory for carrying on business;
`(B) to apportion purchases or sales of any article; or
`(C) to manipulate or control prices; or
`(5) to conspire, combine, agree, or arrange with any other person to do, or aid or abet the doing of, any act made unlawful by paragraph (1), (2), (3), or (4).
`(c) Public Policy Considerations- In determining whether an act, device, or anti-competitive practice described in subsection (a) is unfair, a court may consider whether--
`(1) a reasonable person would consider the act, device, or practice unfair under the circumstances, whether or not the act, device, or practice has previously been found unlawful; or
`(2) the act, device, or practice may violate standards established by Federal or State law (including common law and regulations).
SEC. 202. PROHIBITIONS INVOLVING PRODUCER ASSOCIATIONS AND PRODUCTION CONTRACTS.
`(a) Any Unlawful Act Involving Producer Associations and Production Contracts- It shall be unlawful for any covered person--
`(1) to interfere with, restrain, or coerce any producer in the exercise of the right of the producer to join and belong to, or to refrain from joining or belonging to, an association of producers;
`(2) to refuse to deal with any producer because of the exercise of the right of the producer to join and belong to the association;
`(3) to discriminate against any producer with respect to price, quantity, quality, or other terms of purchase, acquisition, or other handling of an agricultural commodity because of the membership of the producer in, or the contract of the producer with, an association of producers;
`(4) to coerce or intimidate any producer to enter into, maintain, breach, cancel, or terminate a membership agreement or marketing contract with an association of producers or a contract with a covered person;
`(5) to pay or loan money, give any thing of value, or offer any other inducement or reward to a producer for refusing to or ceasing to belong to an association of producers;
`(6) to make false reports about the finances, management, or activities of an association of producers or covered persons;
`(7) to conspire, combine, agree, or arrange with any other person to do, or aid or abet the performance of, any act made unlawful by this Act;
`(8) to interfere with the formation or administration of any association of producers;
`(9) to contribute financial or other support to an association of producers; or
`(10) to fail to bargain in good faith with an association of producers.
`(b) Any Unlawful Act in Production Contracts- It shall be unlawful for a covered person that is a party to a production contract--
`(1) to fail to act in good faith with respect to the performance and enforcement of the production contract;
`(2) to fail to include 1 or more cover pages that disclose provisions of the production contract relating to--
`(A) duration;
`(B) termination;
`(C) renewal and renegotiation standards;
`(D) responsibility for environmental damage;
`(E) factors to be used in determining payment;
`(F) responsibility for obtaining and complying with Federal, State, and local permits;
`(G) assignability;
`(H) the applicable State law and venue;
`(I) the effect of oral modifications;
`(J) remedies for breach;
`(K) in the case of a livestock or poultry production contract, the minimum number of animals subject to the contract;
`(L) other rules or provisions incorporated in the contract by reference; and
`(M) any other terms that the Secretary determines to be appropriate for disclosure; or
`(3) to violate any of the requirements relating to production contracts under section 204.
`(c) Public Policy Considerations- In determining whether an act, device, or anti-competitive practice described in section 201(a), with respect to the production of an agricultural commodity, is unfair, a court may consider whether--
`(1) a reasonable person would consider the act, device, or practice unfair under the circumstances, whether or not the act, device, or practice has previously been found unlawful; or
`(2) the act, device, or practice may violate standards established by Federal or State law (including common law and regulations).
SEC. 203. PRODUCTION CONTRACTS AND MARKETING CONTRACTS.
`(a) Confidentiality- Any provision of a production contract or a marketing contract that requires that the production contract or marketing contract remain confidential is void, except as the provision applies to a trade secret to which section 552 of title 5, United States Code, applies.
`(b) Arbitration- If a livestock or poultry contract or marketing contract provides for the use of arbitration to resolve a controversy under the livestock or poultry contract or marketing contract, arbitration may be used to settle the controversy only if, after the controversy arises, both parties consent in writing to use arbitration to settle the controversy.
SEC. 204. PRODUCTION CONTRACTS.
`(a) Right of Contract Producers To Cancel Production Contracts-
`(1) IN GENERAL- A contract producer may cancel a production contract by mailing a cancellation notice to the contractor not later than the later of--
`(A) the date that is 3 business days after the date on which the production contract is executed; or
`(B) any cancellation date specified in the production contract.
`(2) DISCLOSURE- A production contract shall clearly disclose--
`(A) the right of the contract producer to cancel the production contract;
`(B) the method by which the contract producer may cancel the production contract; and
`(C) the deadline for canceling the production contract.
`(b) Production Contracts Involving Investment Requirements-
`(1) APPLICABILITY- This subsection applies only to a production contract between a contract producer and a contractor if, but for the production contract, the contract producer would not have made a capital investment of $100,000 or more.
`(2) RESTRICTIONS ON CONTRACT TERMINATION-
`(A) NOTICE OF TERMINATION- Except as provided in subparagraph (C), a contractor shall not terminate or cancel a production contract unless the contractor provides the contract producer with written notice of the intention of the contractor to terminate or cancel the production contract at least 180 days before the effective date of the termination or cancellation.
`(B) REQUIREMENTS- The written notice required under subparagraph (A) shall include alleged causes of the termination.
`(C) EXCEPTIONS- A contractor may terminate or cancel a production contract without notice as required under subparagraph (A) if the basis for the termination or cancellation is--
`(i) a voluntary abandonment of the contractual relationship by the contract producer, such as a complete failure of the contract producer to perform under the production contract;
`(ii) the conviction of the contract producer of an offense of fraud or theft committed against the contractor; or
`(iii) the natural end of the production contract in accordance with the terms of the production contract.
`(D) RIGHT TO CURE-
`(i) IN GENERAL- If, not later than 180 days after the date on which the contract producer receives written notice under subparagraph (A), the contract producer remedies each cause of the breach of contract alleged in the written notice, the contractor may not terminate or cancel a production contract under this paragraph.
`(ii) NO ADMISSION OF BREACH- The remedy or attempt to remedy the causes for the breach of contract by the contract producer under clause (i) does not constitute an admission of breach of contract.
`(c) Additional Capital Investments in Production Contracts-
`(1) IN GENERAL- A covered person shall not require a contract producer to make additional capital investments in connection with a production contract that exceed the initial investment requirements of the production contract.
`(2) EXCEPTIONS- Notwithstanding paragraph (1), a covered person may require additional capital investments if--
`(A) the additional capital investments are offset by reasonable additional consideration, including compensation or a modification to the terms of the production contract; and
`(B) the contract producer agrees in writing that there is acceptable and satisfactory consideration for the additional capital investment. |
