Clarification of United States Antitrust Laws, Immunity, and Liability Under Marketing Order Programs, 45395-45396 [2015-18700]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 80, Number 146 (Thursday, July 30, 2015)]
[Rules and Regulations]
[Pages 45395-45396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18700]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 900

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements 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 advises marketing order board and committee 
members and personnel of the restrictions, limitations, and liabilities 
imposed by those laws.

DATES: Effective July 31, 2015.

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: 
Geronimo.Quinones@ams.usda.gov or Michelle.Sharrow@ams.usda.gov.
    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: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This final rule 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 adds 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 final rule in 
conformance with Executive Orders 12866, 13563, and 13175.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This 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.
    This final rule implements 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 advises marketing order board and committee 
members and personnel of the restrictions, limitations, and liabilities 
imposed by those laws.
    Federal marketing order boards and committees have always been 
subject to U.S. antitrust laws. These boards and committees work with 
USDA in

[[Page 45396]]

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 rule accentuates 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 advises boards and committees of the 
restrictions, limitations, and liabilities of those laws. 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. Failing to adhere to these 
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.

Final 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 final 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 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 accentuates the applicability of U.S. 
antitrust laws to marketing order programs' domestic and foreign 
activities. This action also advises 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 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.
    A proposed rule concerning this action was published in the Federal 
Register on May 6, 2015 (80 FR 25969). The rule was made available 
through the internet by USDA and the Office of the Federal Register. A 
30-day comment period ending June 5, 2015, was provided to allow 
interested persons to respond to the proposal. No comments were 
received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: https://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.
    After consideration of all relevant matter presented, it is hereby 
found that this rule, as hereinafter set forth, will tend to effectuate 
the declared policy of the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because AMS is simply updating the 
regulations to reemphasize the applicability of U.S. antitrust laws.

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 in the preamble, 7 CFR part 900 is 
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.


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 Sec.  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 raise, fix, stabilize, or set a floor for commodity prices, 
or 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: July 27, 2015.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-18700 Filed 7-29-15; 8:45 am]
BILLING CODE 3410-02-P