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On behalf of its 86,000 members, the Chamber of Commerce of the United States is pleased to submit the following comments to the Committee on the Judiciary concerning S. 382, the "Competition Improvements Act of 1979."
The National Chamber supports the underlying concept of S. 382. That is, the Chamber believes it is the obligation of regulatory agencies to consider, and to minimize, the potentially anticompetitive effects of its regulations, be they licensing and pricing regulations or regulations dealing with the health and safety of the public. However, some features of S. 382 should be revised to better achieve the objectives of the bill.
S. 382 would establish a three-part competitive analysis to be factored into the policy development of new regulations. Under this analysis, an agency would not be able to take any action hindering competition unless (1) the action is necessary to accomplish an overriding statutory purpose; (2) the anticompetitive effects are clearly outweighed by significant and reasonably certain benefits to the public; and (3) the overriding statutory purpose cannot otherwise be achieved by an alternative means having a lesser anticompetitive effect.
The three-part test is particularly appropriate for application to agencies involved in more than only "economic regulation." The Environmental Protection Agency and the Occupational Safety and Health Administration, for example, are both charged with the responsibility of protecting the health and safety of the public and yet possess the authority to promulgate regulations that could prove severely injurious to the forces of market competition. S. 382 would compel those agencies to acknowledge the competitive implications of their regulations and to choose the least constricting alternatives.
Our recommendations are as follows:
(1) S. 382 should be amended to make its provisions and obligations applicable to actions taken by the Federal Trade Commission (FTC).
(2) The FTC should be deleted as a "party of right" to participate in any administrative or judicial proceeding arising under this legislation, to avoid a potential conflict-of-interest.
(3) S. 382 also should apply to actions taken by the Consumer Product Safety Commission.
(4) Section 4 (d) should be eliminated. This section would enable the Attorney General and the FTC to utilize "any and all powers conferred upon them by any other provision of law, including the antitrust laws and the Antitrust Civil Process Act..., in carrying out their responsibilities under this Act." This is an altogether unnecessary expansion of powers for the two agencies, given the specific additional duties they would be required to perform.
(5) Section 5 (b) should be eliminated. This section would award litigation costs to any party under certain conditions and would serve no public interest. Given the inherently controversial and judgmental choices that an agency would be required to make in its competitive analyses, the bill might well carry a heavy load of litigation. Providing for reimbursement of litigation costs would only encourage more lawsuits, thereby increasing the costs of administering the Act. The increased delays in agency rulemaking and other activities would be contrary to the public interest.
I will appreciate your consideration of our views, and I respectfully request that this letter be made a part of the hearings record.
Customs Brokers & Forwarders Ascociation of America, Mar.
ONE WORLD TRADE CENTER NEW YORK, NY. 10048 Suite 1109
U.S. Senator Edward 1. Kennedy
May 21, 1979
Dear Senator Kennedy:
Our Association consists of approximately 400 members licensed by the Federal Maritime Commission as ocean freight forwarders to handle exports and by the U.S. Treasury Department as customs brokers to handle imports. Affiliated with us are 23 local associations whose members are similarly licensed. The membership of our association and its affiliates process the vast bulk of general cargo being exported from or imported into the United States.
We understand that the basic purpose of the above bill is to make certain that competitive market forces should be established to the maximum degree possible within all regulated industries.
Our particular concern relates to the approval of steamship conferences and concerted action thereunder by the Federal Maritime Commission under $15, Shipping Act, 1916. (46 U.S. C. 814). We believe that it should be incumbent upon the FMC in such approval proceedings to apply the standards set forth in Section 3. (a) of the above bill.
It its decision in FMC et al.v. Aktievolaget Svenska Amerika Linien, et al., 390 238 (1968), the Supreme Court held that approval
by the FMC under Section 15 could only be granted if there were substantial evidence to show that the concerted arrangement was necessary to meet a serious transportation need, to secure important public benefits, or to further a valid regulatory purpose of the Shipping Act.
To a considerable extent the Supreme Court standards in Svenska are similar to those set forth in Section 3. (a) of your bill. Nevertheless, Svenska is always subject to judicial modification and interpretation. To make certain that the standards of that case will continue to be applied in Section 15 proceedings, we believe that it would be beneficial to our foreign commerce if such standards are enacted into law, as Section 3. (a) would do.
Accordingly, we support the above bill and request that our letter be incorporated into the record of the hearings.
Thanking you, we remain,
Very truly yours,
William R. Casey
National Farmers Union has throughout its history supported measures dealing with the abuses of the market system by trusts, monopolies, and other combinations.
Particularly where competition was absent, or not likely attainable, Farmers Union has advocated federal regulation to cause the franchises or monopoly services to operate in the public interest.
Prior to the organization of the Farmers Union, earlier farm organizations with small businessmen were the nucleus of demands which led to the adoption of the Interstate Commerce Act in 1877 and the Sherman Antitrust Act of 1890.
From its beginning in 1902 and particularly in 1906 and beyond, Farmers Union supported numerous legislative measures in transportation, banking and credit, and farm marketing.
After a rudimentary version of the Capper-Volstead Act was vetoed by President Taft in 1913, Farmers Union supported the adoption of the Clayton Act with its Section 6 provisions dealing with agricultural and labor organizations, which became law in October 1914.
Subsequently, Farmers Union was active in the promotion of the Warehouse Act and the Cotton Futures Act in 1916, the Packers and Stockyards Act in 1921, and the Grain Futures Act in 1922.
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