[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Proposed Rules]
[Pages 32306-32309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13634]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 75, No. 109 / Tuesday, June 8, 2010 /
Proposed Rules
[[Page 32306]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
[Document Number AMS-FV-09-0047]
7 CFR Part 46
Perishable Agricultural Commodities Act: Impact of Post-Default
Agreements on Trust Protection Eligibility
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Department of Agriculture (USDA) is proposing to amend the
regulations under the Perishable Agricultural Commodities Act (PACA) in
response to concerns raised by the industry that sellers may lose their
status as trust creditors when they agree orally or in writing, after
default on payment, to accept payments over time from financially
troubled buyers. The amendment's purpose is to provide greater
direction to the industry on maintaining trust protection after a buyer
has made or is attempting to make partial payments.
Specifically, if there is a default in payment as defined in the
reguations, the amendment would allow a seller, supplier, or agent who
has met the eligibility requirements to enter into a written scheduled
payment agreement for payment of the past due amount while maintaining
its trust eligibility. The length of such an agreement for payment of
the past due amount, while still maintaining eligibility for trust
protection, could not extend beyond 180 days from the default date. In
addition, the unpaid seller, supplier, or agent would be required to
cease all collection of past due amounts under a written scheduled
payment agreement if the buyer enters into bankruptcy or if the buyer
is the respondent in a civil trust action. Any remaining unpaid amounts
subject to the scheduled payment agreement would continue to qualify
for trust protection.
DATES: Written or electronic comments received by August 9, 2010 will
be considered prior to issuance of a final rule.
Additional Information or Comments: You may submit written or
electronic comments to PACA Trust Post-Default Comments, AMS, F&V
Programs, PACA Branch, 1400 Independence Avenue SW., Room 2095-S, Stop
0242, Washington, DC 20250-0242; fax: 202-720-8868; or Internet: http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Phyllis L. Hall or Josephine E.
Jenkins, Trade Practices Section, 202-720-6873.
SUPPLEMENTARY INFORMATION:
Background of PACA and Trust Provisions
The Perishable Agricultural Commodities Act (PACA) was enacted in
1930 to promote fair trading in the marketing of fresh and frozen
fruits and vegetables in interstate and foreign commerce. It protects
growers, shippers, distributors, and retailers dealing in those
commodities by prohibiting unfair and fraudulent trade practices. The
PACA also provides a forum to adjudicate or mediate commercial
disputes. Licensees who violate the PACA may have their license
suspended or revoked, and individuals determined to be responsibly
connected to such licensees are restricted from employment or operating
in the produce industry for a period of time.
Growing, harvesting, packing, and shipping perishables involve
risk: Costs are high, capital is tied up in farmland and machinery, and
returns are delayed until the crop is sold. Because of the highly
perishable nature of the commodities and distance from selling markets,
produce trading is fast moving and often informal. Transactions are
consummated in a matter of minutes, frequently while the commodities
are en route to their destination. Under such conditions, it is often
difficult to check the credit rating of the buyer.
Congress examined the sufficiency of the PACA provisions fifty
years after its inception and determined that prevalent financing
practices in the perishable agricultural commodities industry were
placing the industry in jeopardy. Particularly, Congress focused on the
increase in the number of buyers who failed to pay, or were slow in
paying their suppliers and the impact of such payment practices on
small suppliers who could not withstand a significant loss or delay in
receipt of monies owed. Congress was also troubled by the common
practice of produce buyers granting liens on their inventories to their
lenders, which covered all proceeds and receivables from the sales of
perishable agricultural commodities, while the produce suppliers
remained unpaid. This practice elevated the lenders to a secured
creditor position in the case of the buyer's insolvency, while the
sellers of perishable agricultural commodities remained unsecured
creditors with little or no legal protection or means of recovery in a
suit for damages.
Deeming this situation a ``burden on commerce,'' Congress amended
the PACA in 1984 to include a statutory trust provision, which provides
increased credit security in the absence of prompt payment for
perishable agricultural commodities. The 1984 amendment to the PACA
states in relevant part:
It is hereby found that a burden on commerce in perishable
agricultural commodities is caused by financing arrangements under
which commission merchants, dealers, or brokers, who have not made
payment for perishable agricultural commodities purchased,
contracted to be purchased, or otherwise handled by them on behalf
of another person, encumber or give lenders a security interest in
such commodities, or on inventories of food or other products
derived from such commodities, and any receivables or proceeds from
the sale of such commodities or products, and that such arrangements
are contrary to the public interest. This subsection is intended to
remedy such burden on commerce in perishable agricultural
commodities and to protect the public interest.
(7 U.S.C. 499e(c)(1)).
Under the 1984 amendment, perishable agricultural commodities,
inventories of food or other derivative products, and any receivables
or proceeds from the sale of such commodities or products, are to be
held in a non-segregated floating trust for the benefit of unpaid
sellers. This trust is created by operation of law upon the purchase of
such goods, and the produce buyer is the statutory trustee for the
benefit of the produce seller. To preserve its trust benefits, the
unpaid supplier, seller or agent must give the buyer written notice of
intent to preserve its rights under the trust within
[[Page 32307]]
30 calendar days after payment was due. Alternatively, as provided in
the 1995 amendments to the PACA, a PACA licensee may provide notice of
intent to preserve its trust rights by including specific language as
part of its ordinary and usual billing or invoice statements.
The trust is a non-segregated ``floating trust'' made up of all of
a buyer's commodity-related assets, under which there may be a
commingling of trust assets. There is no need to identify specific
trust assets through each step of the accrual and disposal process.
Since commingling is contemplated, all trust assets would be subject to
the claims of unpaid sellers, suppliers and agents to the extent of the
amount owed them. As each supplier gives ownership, possession, or
control of perishable agricultural commodities to a buyer, and
preserves its trust rights, that supplier becomes a participant in the
trust. Section 5(c)(2) of the PACA states in relevant part:
Perishable agricultural commodities received by a commission
merchant, dealer, or broker in all transactions, and all inventories
of food or other products derived from perishable agricultural
commodities, and any receivables or proceeds from the sale of such
commodities or products, shall be held by such commission merchant,
dealer, or broker in trust for the benefit of all unpaid suppliers
or sellers of such commodities or agents involved in the
transaction, until full payment of the sums owing in connection with
such transactions has been received by such unpaid suppliers,
sellers, or agents.
(7 U.S.C. 499e(c)(2)). Thus, trust participants remain trust
beneficiaries until they have been paid in full.
Under the statute, the District Courts of the United States are
vested with jurisdiction to entertain actions by trust beneficiaries to
enforce payment from the trust. Thus, in the event of business failure,
produce creditors may enforce their rights by suing the buyer in
federal district court. It is common in this type of trust enforcement
action for unpaid sellers to seek a temporary restraining order (TRO)
that freezes the bank accounts of a buyer until the trust creditors are
paid. Many unpaid sellers have found this a very effective tool to
recover payment for produce. Often, a trust enforcement action with a
TRO will be the defining moment for the future of a debtor firm. As the
TRO freezes the bank accounts of the debtor, the debtor must either pay
the trust creditors or attempt to operate a business without access to
its bank accounts. This aggressive course of action by unpaid sellers
is generally pursued when the sellers are concerned that trust assets
are being dissipated.
In the event of a bankruptcy by a produce buyer, that is, the
produce ``debtor,'' the debtor's trust assets are not property of the
bankruptcy estate and are not available for distribution to secured
lenders and other creditors until all valid PACA trust claims have been
satisfied. The trust creditors can petition the court for the turnover
of the debtor's trust-related assets or alternatively request that the
court oversee the liquidation of the inventory and collection of the
receivables and disburse the trust proceeds to qualified PACA trust
creditors.
Because of the statutory trust provision, produce creditors,
including sellers outside the United States, have a far greater chance
of recovering money owed them when a buyer goes out of business.
However, because attorney's fees are incurred in these kinds of suits
it is not always practical to pursue small claims that remain unpaid.
Nonetheless, as a result of the PACA trust provisions, unpaid sellers,
including those outside the United States, have recovered hundreds of
millions of dollars that most likely would not otherwise have been
collected.
The PACA trust provisions protect not only growers, but also other
firms trading in fruits and vegetables since each buyer in the
marketing chain becomes a seller in its own turn and can preserve its
own trust assets accordingly. Because each creditor that buys produce
can preserve trust assets for the benefit of its own suppliers, any
money recovered from a buyer that goes out of business are passed back
through preceding sellers until ultimately the grower also realizes the
financial benefits of the trust provisions. This is particularly
important in the produce industry due to the highly perishable nature
of the commodities as well as the many hands such commodities
customarily pass through to the end customer.
To gain trust protection under the PACA, the law offers two
approaches to unpaid sellers. One option allows PACA licensees to
declare at the time of sale that the produce being sold is subject to
the PACA trust, providing protection in the event that payment is late
or the payment instrument is not honored. This option allows PACA
licensees to protect their trust rights by including the following
language on invoices or other billing statements:
The perishable agricultural commodities listed on this invoice
are sold subject to the statutory trust authorized by section 5(c)
of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C.
499e(c)). The seller of these commodities retains a trust claim over
these commodities, all inventories of food or other products derived
from these commodities, and any receivables or proceeds from the
sale of these commodities until full payment is received.
(7 U.S.C. 499(c)(4)).
The second option for a PACA licensee to preserve its trust rights,
and the sole method for all non-licensed sellers, requires the seller
to provide a separate, independent notice to the buyer of its intent to
preserve its trust benefits. The notice must include sufficient details
to indentify each transaction and be received by the buyer within 30
days after payment becomes due. Since the 1995 amendment to the PACA,
the notice is not required to be filed with USDA.
Under current 7 CFR 46.46(e)(2), only transactions with payment
terms of 30 days from receipt and acceptance, or less, are eligible for
trust protection. Section 46.46(e)(1) of the regulations (7 CFR
46.46(e)(1)) requires that any payment terms beyond ``prompt'' payment
as defined by the regulations, usually 10 days after receipt and
acceptance in a customary purchase and sale transaction, must be
expressly agreed to before entering into the transaction and reduced to
writing. A copy of the agreement must be retained in the files of each
party and the payment due date must be disclosed on the invoice or
billing statement.
Over the past few years, several federal courts have invalidated
the trust rights of unpaid creditors because these creditors agreed in
writing, and in some cases, by oral agreement, after default on
payment, to accept payments over time from financially troubled buyers.
In general, these courts have invalidated the seller's previously
perfected trust rights because the agreements were deemed to extend
payment terms beyond 30 days.\1\
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\1\ See, Paris Foods Corp. v. Foresite Foods, Inc., No. 1:05-cv-
610-WSD, 2007 WL 568841 (N.D. Ga. Feb. 20, 2007); Bocchi Americas
Assoc. v. Commerce Fresh Mktg., Inc., No. Civ. A. H0402411, 2005 WL
3164240 (S.D. Tex. Nov. 28, 2005); American Banana Co. v. Republic
Nat. Bank of N.Y., 362 F.3d 33 (2nd Cir. 2004); Patterson Frozen
Foods, Inc. v. Crown Foods, Int'l, 307 F.3d 666, 667 (7th Cir.
2002); Greg Orchards Produce, Inc. v. P. Roncone J., 180 F.3d 888,
892 (7th Cir. 1999); Idahoan Fresh v. Advantage Produce, Inc., 157
F.3d 197, 205 (3d Cir. 1998); In re Lombardo Fruit and Produce Co.,
12 F.3d 806, 809 (8th Cir. 1993); and Hull v. Hauser's Foods, Inc.,
924 F.2d 777, 781-82 (8th Cir. 1991).
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Many within the industry and the USDA Fruit and Vegetable Industry
Advisory Committee have urged the Secretary to amend the PACA
regulations to address the impact of post-default agreements on
eligibility for trust protection. They have voiced concern that the
uncertainty created by court decisions and the silence of the
[[Page 32308]]
PACA regulations on this matter introduce risk, cost, and unnecessary
litigation to the marketing chain.
The court decisions at issue have held that any post-default
agreement, whether oral or written, that extends the buyer's obligation
to pay the seller's invoices beyond 30 days after receipt and
acceptance of the produce abrogates the produce seller's PACA trust
rights. These decisions have held that (1) when a seller enters into
the post-default agreement, the agreement modifies any valid payment
agreement entered into prior to the transaction and therefore voids the
trust protection,\2\ and (2) post-default agreements that allow for
installment payments exceeding 30 days from receipt of produce violate
the PACA prompt-pay provisions.\3\
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\2\ See American Banana Co., 362 F.3d at 33; Patterson Frozen
Foods, 307 F.3d at 669.
\3\ American Banana Co., 362 F.3d at 46.
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It is our interpretation of the statute and regulations that post-
default agreements are not an extension of the 30-day maximum time
period for pre-transaction agreements that would result in a waiver of
the seller's trust rights; post-default payment agreements are an
attempt to collect a debt. The Secretary has long recognized a
significant difference between the relative positions of buyers and
sellers before a transaction, versus their positions after a buyer
defaults on payment. The Secretary has observed that ``produce sellers
are not in an equal bargaining position with produce purchasers who are
in possession of the produce seller's perishable agricultural
commodities.'' \4\ After a buyer has defaulted on payment, the seller
is at the buyer's mercy. Any agreement reached after default is not an
arm's length transaction. The trust is intended to provide protection
to the unpaid seller whose bargaining position has changed for the
worse after delivering its produce to a buyer. We do not believe that a
seller's perfected trust rights should be lost because the seller
enters into a payment arrangement, in an attempt to collect a debt,
after the buyer has violated the PACA's prompt payment requirement.
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\4\ See In re: Scamcorp, Inc., 57 Agric. Dec. 527, 563 (1998).
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When a buyer defaults on payment for produce, it has committed a
violation of section 2(4) of the PACA (7 U.S.C. 499b(4)). The
defaulting buyer's license is then subject to suspension or revocation,
or the buyer may be assessed a civil penalty for its violations of the
PACA. Allowing a seller who has perfected its trust rights to enter
into a post-default payment agreement with the defaulting buyer does
not negate the buyer's violations of the Act. The trust is a means to
protect the seller's right to payment for produce, not to enforce the
prompt payment provisions of the Act. The Secretary can still initiate
an enforcement action against the buyer to seek the appropriate
sanction for violation of the Act without regard to any post-default
agreement entered into between the unpaid seller and the buyer in
default.
Many of the court decisions at issue have been based on an
interpretation of Sec. 46.46(e) of the regulations (7 CFR 46.46(e)).
Section 46.46(e)(1) (7 CFR 46.46(e)(1)) requires that parties who elect
to use different times for payment must reduce their agreement to
writing before entering into the transaction. Current Sec. 46.46(e)(2)
(7 CFR 46.46(e)(2)) states that the maximum time for payment for a
shipment to which a seller can agree and still qualify for coverage
under the trust is 30 days after receipt and acceptance of the
commodities. It is our interpretation that Sec. 46.46(e)(2), like
(e)(1) of the regulations (7 CFR 46.46(e)(1) and(e)(2)), addresses pre-
transaction agreements only.
This interpretation of our regulations is consistent with the
Secretary's unwillingness to impute a waiver of trust rights as
illustrated in the policies established by the Secretary and upheld by
the courts in the context of the trust provisions of the Packers and
Stockyards Act (7 U.S.C. 181 et seq.), after which the PACA trust
provisions are largely modeled.\5\ In the context of the PACA trust,
the right to make a claim against the trust are vested in the seller,
supplier, or agent who has met the eligibility requirements of
paragraphs (e)(1) and (2) of Sec. 46.46 (7 CFR 46.46(e)(1) and (2)).
The seller, supplier, or agent remains a beneficiary of the PACA trust
until the debt owed is paid in full. An agreement to pay the antecedent
debt in installments is not considered payment in full. Thus, we do not
believe that a post-default payment agreement should constitute a
waiver of a seller's previously perfected trust rights.
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\5\ See, e.g., In re Gotham Provision Co., Inc., 669 F.2d 1000,
1007 (5th Cir. 1982).
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Post-default agreements are often the result of a reasonable effort
by an unpaid seller, supplier, or agent to recover at least some of the
debt owed to it without incurring the risks and expense of protracted
litigation. Such agreements should be viewed as a useful tool for
recovery of unpaid debts, allowing for cure of a temporary payment
delay as can occur in the produce industry due to the perishable nature
of the product being bought and sold as well as the often fast-paced
and short-term fluctuations in market price due to weather, pests,
transportation, and seasonality of supply and demand.
While the potential benefits of post-default agreements are real,
we believe such agreements should be subject to regulatory
requirements. To ensure that the post-default payment arrangement does
not extend beyond a reasonable period, the maximum length of an
agreement to accept scheduled payments on the past due amount and
maintain eligibility for trust protection could not extend beyond 180
days from the default date. We believe that one hundred eighty days is
a reasonable time period during which a firm experiencing minor
financial troubles can work out delinquent accounts with its suppliers.
Such an arrangement lessens the financial problems that often beset an
unpaid produce seller whose market, by its nature, precludes taking the
normal steps to secure credit sales. If a seller who has met the
requirements of paragraphs (e)(1) and (2) of Sec. 46.46 (7 CFR
46.46)(e)(1) and (2)), is not allowed to enter into a post-default
agreement and still maintain its trust protection, the seller is
penalized. In such circumstances, the produce debtor is permitted to
use the seller for financing and at the same time avoid the impact of
the statutory trust. Post-default agreements that allow payments to be
made within 180 days following the default on the original payment due
date pose no significant risk to the produce industry, but they may
allow buyers and sellers more flexibility. Post-default payment
agreements can be a practical approach to getting outstanding debts
paid without jeopardizing the seller's trust rights, thereby serving to
protect the interests of the supplier, buyer, and the fruit and
vegetable industry.
In order to maintain trust eligibility, the post-default payment
agreement should be in writing. A written agreement, rather than a
verbal agreement or course of dealing claim, would constitute a valid
post-default agreement. Parties to a written agreement would have
material evidence to prove the actual terms of the agreement should
litigation become necessary.
When a produce debtor files bankruptcy or if a trust action is
filed against the produce debtor, all unpaid sellers of produce should
be treated equally. Therefore, an unpaid seller who has entered into a
post-default payment agreement must stop accepting payments from the
debtor once a
[[Page 32309]]
bankruptcy or trust action is filed. Any amount still due under the
payment agreement would be subject to the trust.
Section 46.46(e)(1) and (2) of the regulations (7 CFR 46.46(e)(1)
and (2)) speak only to the effect of a pre-transaction agreement on the
ability of a seller, supplier, or agent to qualify for trust
protection. Neither the statute nor current regulation address post-
default agreements, nor do they specify any maximum payment terms for
post-default agreements. The issuance of a regulation clarifying that
post-default agreements do not waive trust rights is within the
Secretary's delegated authority (7 U.S.C. 499o), and would be
consistent with PACA's purpose and legislative history. Failure to do
so may harm interstate commerce in produce that the PACA was enacted to
protect. Therefore, we propose to amend PACA regulations as described
below.
We propose to amend 7 CFR 46.46(e)(2) by adding the words ``prior
to the transaction''. This change would clarify that the 30-day maximum
time period for payment for a shipment to which a seller can agree and
still qualify for coverage under the trust relates back to paragraph
(e)(1) which refers to pre-transaction agreements.
We also propose to add a new paragraph (e)(3) to 7 CFR 46.46. The
new paragraph would provide that in circumstances of a default in
payment as defined in Sec. 46.46(a)(3), a seller, supplier, or agent
who has met the eligibility requirements of Sec. 46.46 paragraphs
(e)(1) and (2) could agree in writing to a schedule for payment of the
past due amount and still remain eligible under the trust. The post-
default payment agreement could not extend beyond 180 days from the
default date. New paragraph (e)(3) would require a seller, supplier or
agent who enters into a post-default payment agreement to stop
accepting payments under the agreement if the buyer declares bankruptcy
or if a temporary restraining order is issued by a district court in a
trust action. The remaining outstanding debt would qualify for trust
protection. Current 7 CFR 46.46(e)(3) and (4) would be redesignated as
(e)(4) and (5).
Executive Orders 12866 and 12988
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866, and therefore, has not been
reviewed by the Office of Management and Budget. This proposed rule has
been reviewed under Executive Order 12988, Civil Justice Reform, and is
not intended to have retroactive effect. This proposed rule will not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with this rule. There are no
administrative procedures that must be exhausted prior to any judicial
challenge to the provisions of this proposed rule.
Effects on Small Businesses
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.), USDA has considered the economic
impact of this proposed rule on small entities. 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. The Small Business Administration (SBA)
has defined small agricultural service firms (13 CFR 121.601) as those
whose annual receipts are less than $7,000,000. There are approximately
14,400 firms licensed under the PACA, a majority of which could be
classified as small entities.
The proposed regulations would clarify that a trust beneficiary who
has perfected its trust rights does not forfeit those rights by
entering into a post-default agreement to accept partial or installment
payments on the amount due. This language would provide companies of
all sizes with clear regulatory guidance on this matter, thereby
reducing the time and expense associated with litigating matters
involving post-default agreements and trust right preservation under
the PACA. Therefore, we believe that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
In accordance with OMB regulations (5 CFR part 1320) that implement
the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the
information collection and recordkeeping requirements that are covered
by this proposed rule are currently approved under OMB number 0581-
0031.
E-Government Act Compliance
AMS is committed to complying with the E-Government Act, which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. Forms are available on our PACA Web
site at http://www.ams.usda.gov/paca and can be printed, completed, and
faxed. Currently, forms are transmitted by fax machine and postal
delivery.
List of Subjects in 7 CFR Part 46
Definitions, Accounts and records, Duties of licensees, Statutory
trust.
For the reasons set forth in the preamble, AMS proposes to amend 7
CFR part 46 as follows:
PART 46--[AMENDED]
1. The authority citation for part 46 continues to read as follows:
Authority: 7 U.S.C. 499a-499t.
2. In Sec. 46.46, paragraph (e)(2) is revised, paragraphs (e)(3)
and (4) are redesignated as paragraphs (e)(4) and (5), and a new
paragraph (e)(3) is added as follows:
Sec. 46.46 Statutory trust
* * * * *
(e) * * *
(2) The maximum time for payment for a shipment to which a seller,
supplier, or agent can agree, prior to the transaction, and still be
eligible for benefits under the trust is 30 days after receipt and
acceptance of the commodities as defined in Sec. 46.2(dd) and
paragraph (a)(1) of this section.
(3) If there is a default in payment as defined in Sec.
46.46(a)(3), the seller, supplier, or agent who has met the eligibility
requirements of paragraphs (e)(1) and (2) of this section will not
forfeit eligibility under the trust by agreeing in writing to a
schedule for payment of the past due amount. The maximum time for
payment of a past due amount to which a seller, supplier, or agent can
agree, after a default, and still be eligible for benefits under the
trust is 180 days from the default date, that is, the original payment
due date of the transaction. The seller, supplier, or agent must cease
all collections of past due amounts under a scheduled payment agreement
if the buyer enters into bankruptcy or if the buyer is ordered to hold
its inventory, accounts receivable, and proceeds intact until a
determination of trust interest in a civil action. The remaining unpaid
amount under the scheduled payment agreement will continue to qualify
for trust protection.
* * * * *
Dated: June 2, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing.
[FR Doc. 2010-13634 Filed 6-7-10; 8:45 am]
BILLING CODE P