May 26, 2025
Anticompetitive Regulations Task Force
United States Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
(Transmitted electronically at www.regulations.gov)
Re: Docket No. ATR-2025-0001
To Whom It May Concern:
The National Council of Farmer Cooperatives (NCFC) offers the following comments in response to the Anticompetitive Regulations Task Force’s request for comments identifying laws and regulations that raise barriers to competition.
NCFC Background. Since 1929, NCFC has been the voice of America’s farmer cooperatives. Our members are regional and national farmer cooperatives, which are in turn comprised of nearly 3,000 local farmer cooperatives across the country. NCFC members also include twenty-six state and regional councils of cooperatives.
Farmer-owned cooperatives handle, process, and market almost every type of agricultural commodity; furnish farm supplies; and provide credit and related financial services, including export financing. Nationwide, farmer cooperatives provide over 250,000 jobs, with a total payroll of more than $8 billion, and contribute significantly to the economic well-being of rural America.
Farmer cooperatives are unlike investor-owned businesses. Farmer cooperatives are owned and controlled by their farmer members and proceeds are returned to farmers in the form of patronage dividends, typically based on the amount of business done with the cooperative. Retained earnings are used to build equity or capital assets and improve the earnings passed on to farmers.
Comments on Hart-Scott Rodino Act Reporting Requirements. Farmer cooperatives will occasionally acquire or dispose of businesses in order to better serve both their famer-members and their customers (which include essentially every American family). Sometimes these transactions are between a farmer-owned cooperative and a different kind of business entity, but sometimes they are between two or more farmer-owned cooperatives. In the latter case, the Federal Trade Commission’s (FTC’s) Premerger Notification Office has taken the position that the Hart-Scott-Rodino (HSR) Act’s reporting requirements apply.
Regulations can be anticompetitive not only because of their substance, but also because of the burdens they impose on businesses. Last fall the FTC, with the concurrence of the U.S. Department of Justice (DOJ), approved a new premerger notification form. The new form unquestionably imposes significantly more burden on all parties, including farmer cooperatives. Indeed, the broader business community made this clear by filing “a huge number of filings right before the new forms arrived.”1 As FTC Chair Andrew Ferguson noted, the FTC’s Premerger Notification Office “typically see[s] between 35 and 50 transactions per week,” but in the final week in which the old notification form could be used, “the PNO received 394 filings accounting for about 200 transactions.”2
The burden of collecting and submitting the additional information and documents may be warranted where the FTC or DOJ has at least preliminarily identified a substantive concern with the specific reported transaction (as was the practice under the previous notification form). But that has always been a tiny fraction of the overall number of transactions reported. According to the most recent Hart-Scott-Rodino Annual Report (for FY 2023), the FTC and DOJ reported that the two agencies combined received clearance to investigate only 10.7% of all reported transactions – 185 out of the total 1,735 reported transactions. The number of “second request” investigations was even lower – 2%, or 37 investigations out of 1,735 reported transactions.
NCFC urges the FTC to schedule an internal retrospective study, at an appropriate time, to determine whether the new notification requirements generate enough efficiency for the FTC and DOJ to warrant the burden on reporting parties, and whether there are categories of transactions for which the burdens could be lessened (or, conversely, whether the new burdens should be eliminated except for certain categories for which they should be preserved). For example, where two farm-supply cooperatives combine, the customers of the combining businesses are also the owners of the business and will typically have a right to vote on the proposed transaction, either directly or through their elected representatives. Imposing significant notification burdens is not warranted for this category of transactions.
We urge you to consider eliminating these onerous requirements, especially in the context of the expense imposed on America’s farmers and farmer cooperatives.
Sincerely,
Charles F. Conner
President & CEO
1 Memorandum from Chairman Andrew N. Ferguson to FTC Staff (Feb. 18, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-memo-re-merger-guidelines.pdf.
2 Id.
NCFC Submits Comments to Anticompetition Task Force
May 26, 2025
Anticompetitive Regulations Task Force
United States Department of Justice
Antitrust Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
(Transmitted electronically at www.regulations.gov)
Re: Docket No. ATR-2025-0001
To Whom It May Concern:
The National Council of Farmer Cooperatives (NCFC) offers the following comments in response to the Anticompetitive Regulations Task Force’s request for comments identifying laws and regulations that raise barriers to competition.
NCFC Background. Since 1929, NCFC has been the voice of America’s farmer cooperatives. Our members are regional and national farmer cooperatives, which are in turn comprised of nearly 3,000 local farmer cooperatives across the country. NCFC members also include twenty-six state and regional councils of cooperatives.
Farmer-owned cooperatives handle, process, and market almost every type of agricultural commodity; furnish farm supplies; and provide credit and related financial services, including export financing. Nationwide, farmer cooperatives provide over 250,000 jobs, with a total payroll of more than $8 billion, and contribute significantly to the economic well-being of rural America.
Farmer cooperatives are unlike investor-owned businesses. Farmer cooperatives are owned and controlled by their farmer members and proceeds are returned to farmers in the form of patronage dividends, typically based on the amount of business done with the cooperative. Retained earnings are used to build equity or capital assets and improve the earnings passed on to farmers.
Comments on Hart-Scott Rodino Act Reporting Requirements. Farmer cooperatives will occasionally acquire or dispose of businesses in order to better serve both their famer-members and their customers (which include essentially every American family). Sometimes these transactions are between a farmer-owned cooperative and a different kind of business entity, but sometimes they are between two or more farmer-owned cooperatives. In the latter case, the Federal Trade Commission’s (FTC’s) Premerger Notification Office has taken the position that the Hart-Scott-Rodino (HSR) Act’s reporting requirements apply.
Regulations can be anticompetitive not only because of their substance, but also because of the burdens they impose on businesses. Last fall the FTC, with the concurrence of the U.S. Department of Justice (DOJ), approved a new premerger notification form. The new form unquestionably imposes significantly more burden on all parties, including farmer cooperatives. Indeed, the broader business community made this clear by filing “a huge number of filings right before the new forms arrived.”1 As FTC Chair Andrew Ferguson noted, the FTC’s Premerger Notification Office “typically see[s] between 35 and 50 transactions per week,” but in the final week in which the old notification form could be used, “the PNO received 394 filings accounting for about 200 transactions.”2
The burden of collecting and submitting the additional information and documents may be warranted where the FTC or DOJ has at least preliminarily identified a substantive concern with the specific reported transaction (as was the practice under the previous notification form). But that has always been a tiny fraction of the overall number of transactions reported. According to the most recent Hart-Scott-Rodino Annual Report (for FY 2023), the FTC and DOJ reported that the two agencies combined received clearance to investigate only 10.7% of all reported transactions – 185 out of the total 1,735 reported transactions. The number of “second request” investigations was even lower – 2%, or 37 investigations out of 1,735 reported transactions.
NCFC urges the FTC to schedule an internal retrospective study, at an appropriate time, to determine whether the new notification requirements generate enough efficiency for the FTC and DOJ to warrant the burden on reporting parties, and whether there are categories of transactions for which the burdens could be lessened (or, conversely, whether the new burdens should be eliminated except for certain categories for which they should be preserved). For example, where two farm-supply cooperatives combine, the customers of the combining businesses are also the owners of the business and will typically have a right to vote on the proposed transaction, either directly or through their elected representatives. Imposing significant notification burdens is not warranted for this category of transactions.
We urge you to consider eliminating these onerous requirements, especially in the context of the expense imposed on America’s farmers and farmer cooperatives.
Sincerely,
Charles F. Conner
President & CEO
1 Memorandum from Chairman Andrew N. Ferguson to FTC Staff (Feb. 18, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-memo-re-merger-guidelines.pdf.
2 Id.
Related Resources
NCFC, National Ag Organizations Send Letter to House Majority Leadership Supporting Certain Tax Provisions in Reconciliation Bill
NCFC Joins Main Street Employers in Supporting Budget Reconciliation Tax Package
Section 199A(g) Deduction
NCFC Leads 270 Ag Organizations in Letter to Congressional Leadership to Permanently Extend Section 199A