Sec. 202. Unlawful practices
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Section 202 of the Packers and Stockyards Act, 1921 ( 7 U.S.C. 192 ) is amended— by redesignating subsections
(a)through
(f)and
(g)as paragraphs
(1)through
(6)and (10), respectively, and indenting appropriately; by striking the section designation and all that follows through It shall be in the matter preceding paragraph
(1)(as so redesignated) and inserting the following: It shall be ; in subsection (a)— in the matter preceding paragraph
(1)(as so redesignated), by striking to: and inserting to do any of the following: ; in each of paragraphs
(1)through
(6)(as so redesignated), by striking ; or each place it appears and inserting a period; in paragraph
(6)(as so redesignated)— by striking
(1)and inserting
(A); by striking
(2)and inserting
(B); and by striking
(3)and inserting
(C); by inserting after paragraph
(6)the following: Use, in effectuating any sale of livestock, a forward contract that— does not contain a firm base price that may be equated to a fixed dollar amount on the date on which the forward contract is entered into; is not offered for bid in an open, public manner under which— buyers and sellers have the opportunity to participate in the bid; more than 1 blind bid is solicited; and buyers and sellers may witness bids that are made and accepted; is based on a formula price; or provides for the sale of livestock in a quantity in excess of— in the case of cattle, 40 cattle; in the case of swine, 30 swine; and in the case of another type of livestock, a comparable quantity of that type of livestock, as determined by the Secretary. Own or feed livestock directly, through a subsidiary, or through an arrangement that gives a packer operational, managerial, or supervisory control over the livestock, or over the farming operation that produces the livestock, to such an extent that the producer of the livestock is not materially participating in the management of the operation with respect to the production of the livestock, except that this paragraph shall not apply to— an arrangement entered into not more than 7 business days before slaughter of the livestock by a packer, a person acting through the packer, or a person that directly or indirectly controls, or is controlled by or under common control with, the packer; a cooperative or entity owned by a cooperative, if a majority of the ownership interest in the cooperative is held by active cooperative members that— own, feed, or control the livestock; and provide the livestock to the cooperative for slaughter; a packer that is not required to report to the Secretary on each reporting day (as defined in section 212 of the Agricultural Marketing Act of 1946 ( 7 U.S.C. 1635a )) information on the price and quantity of livestock purchased by the packer; or a packer that owns only 1 livestock processing plant. Take any action that adversely affects or is likely to adversely affect competition, regardless of whether there is a business justification for the action. ; and in paragraph
(10)(as so redesignated), by striking subdivision (a), (b), (c), (d), or
(e)and inserting paragraphs
(1)through
(9); and by adding at the end the following: Acts by a packer, swine contractor, or live poultry dealer that violate subsection (a)(1) include the following: Refusal to provide, on the request of a livestock producer, swine production contract grower, or poultry grower with which the packer, swine contractor, or live poultry dealer has a marketing or delivery contract, the relevant statistical information and data used to determine the compensation paid to the livestock producer, swine production contract grower, or poultry grower, as applicable, under the contract, including— feed conversion rates by house, lot, or pen; feed analysis; breeder history; quality grade; yield grade; and delivery volume for any certified branding program (such as programs for angus beef or certified grassfed or Berkshire pork). Conduct or action that limits or attempts to limit by contract the legal rights and remedies of a livestock producer, swine production contract grower, or poultry grower, including the right— to a trial by jury, unless the livestock producer, swine production contract grower, or poultry grower, as applicable, is voluntarily bound by an arbitration provision in a contract; to pursue all damages available under applicable law; and to seek an award of attorneys' fees, if available under applicable law. Termination of a poultry growing arrangement or swine production contract with no basis other than an allegation that the poultry grower or swine production contract grower failed to comply with an applicable law, rule, or regulation. A representation, omission, or practice that is likely to mislead a livestock producer, swine production contract grower, or poultry grower regarding a material condition or term in a contract or business transaction. Acts by a packer, swine contractor, or live poultry dealer that violate subsection (a)(2) include the following: A retaliatory action (including coercion or intimidation) or the threat of retaliatory action— in connection with the execution, termination, extension, or renewal of a contract or agreement with a livestock producer, swine production contract grower, or poultry grower aimed to discourage the exercise of the rights of the livestock producer, swine production contract grower, or poultry grower under this Act or any other law; and in response to lawful communication (including as described in paragraph (2)), association, or assertion of rights by a livestock producer, swine production contract grower, or poultry grower. Use of the tournament system for poultry as described in paragraph (3). A lawful communication referred to in paragraph (1)(A)(ii) includes— a communication with officials of a Federal agency or Members of Congress; any lawful disclosure that demonstrates a reasonable belief of a violation of this Act or any other law; and any other communication that assists in carrying out the purposes of this Act. Subject to subparagraph (B), a live poultry dealer shall be in violation of subsection (a)(2) if the live poultry dealer determines the formula for calculating the pay of a poultry grower in a tournament group by comparing the performance of the birds of other poultry growers in the group using factors outside the control of the poultry grower and within the control of the live poultry dealer. Under subparagraph (A), a live poultry dealer shall not be found in violation of subsection (a)(2) if the live poultry dealer demonstrates through clear and convincing evidence that the inputs and services described in subparagraph
(C)that were used in the comparative evaluation were substantially the same in quality, quantity, and timing, as applicable, for all poultry growers in the tournament group. The inputs and services referred to in subparagraph
(B)include, with respect to poultry growers in the same tournament group— the quantity, breed, sex, and age of chicks delivered to each poultry grower; the breed and age of the breeder flock from which chicks are drawn for each poultry grower; the quality, type (such as starter feed), and quantity of feed delivered to each poultry grower; the quality of and access to medications for the birds of each poultry grower; the number of birds in a flock delivered to each poultry grower; the timing of the pick-up of birds for processing (including the age of the birds and the number of days that the birds are in the care of the poultry grower) for each poultry grower; the death loss of birds during pick-up, transport, and time spent at the processing plant for each poultry grower; condemnations of parts of birds due to actions in processing for each poultry grower; condemnations of whole birds due to the fault of the poultry grower; the death loss of birds due to the fault of the poultry grower; the stated reasons for the cause of the death losses and condemnations described in clauses
(vii)through (x); the type and classification of each poultry grower; and any other input or service that may have an impact on feed conversion to weight gain efficiency or the life span of the birds of each poultry grower. In determining whether an act, device, or conduct is a violation under paragraph
(1)or
(2)of subsection (a), a finding that the act, device, or conduct adversely affected or is likely to adversely affect competition is not required. . Subject to paragraph (2), paragraph
(8)of section 202(a) of the Packers and Stockyards Act, 1921 ( 7 U.S.C. 192 ) (as designated by subsection (a)(2)) shall take effect on the date of enactment of this Act. In the case of a packer that, on the date of enactment of this Act, owns, feeds, or controls livestock intended for slaughter in violation of paragraph
(8)of section 202(a) of the Packers and Stockyards Act, 1921 ( 7 U.S.C. 192 ) (as designated by subsection (a)(2)), that paragraph shall take effect— in the case of a packer of swine, beginning on the date that is 18 months after the date of enactment of this Act; and in the case of a packer of any other type of livestock, beginning not later than 180 days after the date of enactment of this Act, as determined by the Secretary.
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