[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 92566-92594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30424]


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DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

9 CFR Part 201

RIN 0580-AB25


Scope of Sections 202(a) and (b) of the Packers and Stockyards 
Act

AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Department of Agriculture's (USDA) Grain Inspection, 
Packers and Stockyards Administration (GIPSA), Packers and Stockyards 
Program (P&SP) is amending the regulations issued under the Packers and 
Stockyards Act, 1921, as amended and supplemented (P&S Act). GIPSA is 
adding a paragraph addressing the scope of sections 202(a) and (b) of 
the P&S Act. This interim final rule clarifies that conduct or action 
may violate sections 202(a) and (b) of the P&S Act without adversely 
affecting, or having a likelihood of adversely affecting, competition. 
This interim final rule reiterates USDA's longstanding interpretation 
that not all violations of the P&S Act require a showing of harm or 
likely harm to competition. The regulations would specifically provide 
that the scope of section 202(a) and (b) encompasses conduct or action 
that, depending on their nature and the circumstances, can be found to 
violate the P&S Act without a finding of harm or likely harm to 
competition. This interim final rule finalizes a proposed amendment 
that GIPSA published on June 22, 2010. GIPSA is now publishing as an 
interim final rule what was proposed on June 22, 2010, with slight 
modifications, in order to allow additional comment on these 
provisions.

DATES: This interim final rule is February 21, 2017. Interested persons 
are invited to submit written comments on this interim final rule on or 
before February 21, 2017.

ADDRESSES: We invite you to submit comments on this interim final rule. 
You may submit comments by any of the following methods:
     Mail: M. Irene Omade, GIPSA, USDA, 1400 Independence 
Avenue SW., Room 2542A-S, Washington, DC 20250-3613.
     Hand Delivery or Courier: M. Irene Omade, GIPSA, USDA, 
1400 Independence Avenue SW., Room 2530-S, Washington, DC 20250-3613.
     Internet: http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    Instructions: All comments should make reference to the date and 
page number of this issue of the Federal Register. All comments 
received will be included in the public docket without change, 
including any personal information provided. Regulatory analyses and 
other documents relating to this rulemaking will be available for 
public inspection in Room 2542A-S, 1400 Independence Avenue SW., 
Washington, DC 20250-3613 during regular business hours. All comments 
will be available for public inspection in the above office during 
regular business hours (7 CFR 1.27(b)). Please call the Management and 
Budget Services staff of GIPSA at (202) 720-8479 to arrange a public 
inspection of comments or other documents related to this rulemaking.

FOR FURTHER INFORMATION CONTACT: S. Brett Offutt, Director, Litigation 
and Economic Analysis Division, P&SP, GIPSA, 1400 Independence Ave, 
SW., Washington, DC 20250, (202) 720-7051, [email protected].

SUPPLEMENTARY INFORMATION: The first section that follows provides 
background and a summary of the regulatory text for Sec.  201.3(a) and 
(b) in this interim final rule as compared to the regulatory wording 
for Sec.  201.3(c) and (d) in the 2010 proposed rule. The second 
section provides background information about this rule. The third 
section provides a summary of the public comments received on the 
proposed rule and at the relevant USDA/Department of Justice Joint 
Competition Workshops that occurred during the comment period. The 
fourth section discusses the proposal of new Sec. Sec.  201.210, 
201.211, and 201.214, in this issue of the Federal Register. The last 
section provides the required impact analyses including the Regulatory 
Flexibility Act, the Paperwork Reduction Act, Civil Rights Analysis, 
and the relevant Executive Orders.

I. Summary of Changes From the 2010 Proposed Rule

Section 201.3 as Proposed in June 2010

    In the proposed rule published in the Federal Register on June 22, 
2010 [75 FR 35338], GIPSA proposed a new Sec.  201.3, ``Applicability 
of regulations in this part,'' providing four (4) subsections to 
describe, in certain respects, the application of the regulations in 9 
CFR part 201. These subsections were designated Sec.  201.3(a) through 
Sec.  201.3(d). Subsection 201.3(c) described the appropriate 
application of sections 202(a) and (b) of the P&S Act (7 U.S.C. 192(a) 
and (b)).
    In this current rule, GIPSA is re-designating the existing 
undesignated paragraph in Sec.  201.3 as Sec.  201.3(b), and is adding 
back the subject heading, ``Effective dates'' to this paragraph.
    GIPSA is amending Sec.  201.3 with the addition of proposed Sec.  
201.3(c), with slight modifications. Because this provision is of 
primary importance, GIPSA is designating it as the first of two 
paragraphs in Sec.  201.3 and changing its designation from (c) to (a). 
GIPSA has made slight modifications including a grammatical edit and 
also modified a few words to make the language internally consistent 
and also consistent with the language in new proposed Sec. Sec.  
201.210, 201.211, and 201.214, published concurrently in this issue of 
the Federal Register as separate proposed rules.

II. Background

A. Development of the Rule

    Prior to issuing the initial proposed regulations in 2010, GIPSA 
held three public meetings in October 2008, in Arkansas, Iowa, and 
Georgia to gather comments, information, and recommendations from 
interested parties. Attendees at these meetings were asked to give 
input on the elements of the 2008 Farm Bill and other issues of concern 
under the P&S Act. In 2010, USDA and the Department of Justice held 
five joint public workshops to explore competition issues affecting 
agricultural industries in the 21st century and the appropriate role 
for antitrust and regulatory enforcement in those industries. These 
workshops were held in Ankeny, Iowa (Issues of Concern to Farmers, 
March 12, 2010); Normal, Alabama (Poultry Industry, May 21, 2010); 
Madison, Wisconsin (Dairy Industry, June 25, 2010); Fort Collins, 
Colorado (Livestock Industry, August 27, 2010); and Washington, 
District of Columbia (Margins, December 8, 2010). The Secretary 
informed attendees of the workshop in Fort Collins, Colorado that their 
comments provided that day would be considered in the development of 
this rulemaking. The Fort Collins workshop addressed issues in the 
cattle, hog, and other animal

[[Page 92567]]

sectors. Attendees provided comments on concentration in livestock 
markets, buyer power, and enforcement of the P&S Act. GIPSA 
incorporated relevant comments from the Madison, Wisconsin and Fort 
Collins, Colorado workshops into the text of the wording of the final 
rule published on December 9, 2011.
    The regulations in this current interim final rule also reflect 
comments, information, and recommendations received in all those 
meetings.
    On June 22, 2010, GIPSA published the proposed rule [75 FR 35338] 
upon which this interim final rule is based. The background information 
presented in the proposed rule remains pertinent to this interim final 
rule. Some of this background information is presented again here.
    In that proposed rule, GIPSA proposed a multi-faceted rule and 
sought public input. During a 5-month comment period, GIPSA received 
over 61,000 comments from a wide variety of stakeholders. Some 
commenters addressed issues associated with this interim final rule. 
GIPSA published a final rule in 2011 that included modifications to 
address concerns expressed by commenters. The final rule addressed 
most, but not all, of the requirements of the Food, Conservation, and 
Energy Act of 2008 (Pub. L. 110-246) (2008 Farm Bill); however, for the 
reasons described in further detail below, GIPSA never implemented a 
final Sec.  201.3(c) following the 2010 public notice and comment 
period. The 2010 proposed rule also proposed three other regulations, 
Sec. Sec.  201.210, 201.211, and 201.214, that GIPSA has restructured 
and rewritten and is publishing as two separate proposed rules 
concurrent with this rule. Proposed Sec.  201.210, ``Unfair, unjustly 
discriminatory and deceptive practices or devices by packers, swine 
contractors, or live poultry dealers,'' and Sec.  201.211, ``Undue or 
unreasonable preferences or advantages'' further clarify and define the 
provisions of Sec.  201.3(a). Proposed Sec.  201.214, ``Poultry Grower 
Ranking Systems'' provides criteria which would be used in considering 
whether a live poultry dealer has used a poultry grower ranking system 
in an unfair, unjustly discriminatory, or deceptive manner or in a way 
that gives an undue or unreasonable preference or advantage to any 
poultry grower or subjects any poultry grower to an undue or 
unreasonable prejudice or disadvantage.
    Beginning with the fiscal year (FY) 2012 appropriations act, USDA 
was precluded from finalizing some of the regulations as proposed in 
June 2010. Section 201.3(c), ``Scope of Sections 202(a) and (b) of the 
Act,'' Sec. Sec.  201.210, 201.211, and 201.214, published as part of 
the June 22, 2010, proposed rule, were included in the restrictions in 
the appropriations acts. Until FY 2016, appropriations acts continued 
to preclude the finalization of Sec. Sec.  201.3(c), 201.210, 201.211, 
and 201.214.
    Section 201.3(a), ``Applicability to live poultry dealers,'' and 
Sec.  201.3(d), ``Effective dates,'' proposed in June 2010, were 
published on December 9, 2011 [76 FR 76874], as a final rule with some 
changes. At that time, the designation of proposed paragraph (d) was 
changed to (b).
    Section 731, Division A, of the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235), required the Secretary to 
rescind what was then Sec.  201.3(a), ``Applicability to live poultry 
dealers,'' leaving paragraph (b) as the only paragraph in Sec.  201.3. 
As a result, GIPSA removed the designation for this paragraph as 
paragraph (b) and also removed its subject heading, ``Effective 
dates.'' This was accomplished by a final rule published on February 5, 
2015 [80 FR 6430].
    Neither the FY 2016 appropriations act nor the FY 2017 continuing 
appropriations act precludes GIPSA from publishing Sec. Sec.  201.3(c), 
201.210, 201.211, or 201.214 as final rules.

B. Purpose of the Regulatory Action

    Section 202 of the P&S Act provides that ``[i]t shall be unlawful 
for any packer or swine contractor with respect to livestock, meats, 
meat food products, or livestock products in unmanufactured form, or 
for any live poultry dealer with respect to live poultry'' to engage in 
certain prohibited conduct. Section 202(a) prohibits ``any unfair, 
unjustly discriminatory, or deceptive practice or device.'' Section 
202(b) prohibits ``any undue or unreasonable preference or advantage'' 
or ``any undue or unreasonable prejudice or disadvantage.'' USDA has 
consistently taken the position that, in some cases, a violation of 
section 202(a) or (b) can be proven without proof of predatory intent, 
competitive injury, or likelihood of competitive injury.\1\ At the same 
time, USDA has always understood that an act or practice's effect on 
competition can be relevant \2\ and, in certain circumstances, even 
dispositive \3\ with respect to whether that act or practice violates 
sections 202(a) and/or (b).
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    \1\ In re Ozark County Cattle Co., 49 Agric. Dec. 336, 365 
(1990); 1 John H. Davidson et al., Agricultural Law section 3.47, at 
244 (1981).
    \2\ See, In re Sterling Colo. Beef Co., 39 Agric. Dec. 184, 235 
(1980) (considering and rejecting respondent packer's business 
justification for challenged conduct).
    \3\ See, Armour & Co. v. United States, 402 F.2d 712, 717 (7th 
Cir. 1968) (a coupon promotion plan (here coupons for fifty cents 
off specified packages of bacon) is not per se unfair and violates 
section 202(a) if it is implemented with some predatory intent or 
carries some likelihood of competitive injury); In re IBP, Inc., 57 
Agric. Dec. 1353, 1356 (1998) (contractual right of first refusal at 
issue violated section 202 ``because it has the effect or potential 
of reducing competition'').
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    As we explained in the proposed rule, the longstanding agency 
position that, in some cases, a violation of section 202(a) or (b) can 
be proven without proof of likelihood of competitive injury is 
consistent with the language and structure of the P&S Act, as well as 
its legislative history and purposes. Neither section 202(a) nor 
section 202(b) contains any language limiting the application of those 
sections to acts or practices that have an adverse effect on 
competition, such as acts ``restraining commerce.'' Instead, these 
provisions use terms including ``deceptive,'' ``unfair,'' ``unjust,'' 
``undue,'' and ``unreasonable''--which are commonly understood to 
encompass more than anticompetitive conduct.\4\ This is in direct 
contrast to subsections (c), (d), and (e), which expressly prohibit 
only those acts that have the effect of ``restraining commerce,'' 
``creating a monopoly,'' or producing another type of antitrust injury. 
The fact that Congress expressly included these limitations in 
subsections (c), (d), and (e), but not in subsections (a) and (b), is a 
strong indication that Congress did not intend subsections (a) and (b) 
to be limited to instances in which there was harm to competition. And 
Congress confirmed the agency's position by amending the P&S Act to 
specify specific instances of conduct prohibited as unfair that do not 
involve any inherent likelihood of competitive injury.\5\
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    \4\ When the P&S Act was enacted, Webster's New International 
Dictionary defined ``deceptive'' as ``[t]ending to deceive; having 
power to mislead, or impress with false opinions''; ``unfair'' as 
``[n]ot fair in act or character; disingenuous; using or involving 
trick or artifice; dishonest; unjust; inequitable'' (2d. 
definition); and ``unjust'' as ``[c]haracterized by injustice; 
contrary to justice and right; wrongful.'' Webster's New 
International Dictionary 578, 2237, 2238, 2245, 2248 (1st ed. 1917). 
This is the same understanding of the terms today.
    \5\ See sections 409(c) and 410(b).
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    USDA's interpretation of sections 202(a) and (b) is also consistent 
with the interpretation of other sections of the P&S Act using similar 
language--sections 307 and 312 (7 U.S.C. 208 and 213). Courts have 
recognized that the proper analysis under these provisions

[[Page 92568]]

depends on ``the facts of each case,'' \6\ and that these sections may 
apply in the absence of harm to competition or competitors.\7\
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    \6\ Capitol Packing Co. v. United States, 350 F.2d 67, 76 (10th 
Cir. 1965); see also, Spencer Livestock Comm'n Co. v. USDA, 841 F.2d 
1451, 1454 (9th Cir. 1988).
    \7\ See, e.g., Spencer, 841 F.2d at 1455 (Section 312 covers ``a 
deceptive practice, whether or not it harmed consumers or 
competitors.'').
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    The legislative history and purposes of the P&S Act also support 
USDA's position. The P&S Act ``is a most comprehensive measure and 
extends farther than any previous law in the regulation of private 
business, in time of peace, except possibly the interstate commerce 
act.'' \8\ In amending the P&S Act, Congress made clear that its goals 
for the statute extended beyond the protection of competition. In 1935, 
for instance, when Congress first subjected live poultry dealers to 
sections 202(a) and (b), Congress explained in the statute itself that 
``[t]he handling of the great volume of live poultry . . . is attendant 
with various unfair, deceptive, and fraudulent practices and devices, 
resulting in the producers sustaining sundry losses and receiving 
prices far below the reasonable value of their live poultry. . . .'' 
\9\ Similarly, the House Committee Report regarding the 1958 amendments 
stated that ``[t]he primary purpose of [the P&S Act] is to assure fair 
competition and fair trade practices'' and ``to safeguard farmers . . . 
against receiving less than the true market value of their livestock.'' 
\10\ The Report further observed that protection extends to ``unfair, 
deceptive, unjustly discriminatory'' practices by ``small'' companies 
in addition to ``monopolistic practices.'' \11\ In accordance with this 
legislative history, courts and commentators have recognized that the 
purposes of the P&S Act are not limited to protecting competition.\12\
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    \8\ H.R. Rep. 67-77, at 2 (1921); see also, Swift & Co. v. 
United States, 308 F.2d 849, 853 (7th Cir. 1962) (``The legislative 
history showed Congress understood the sections of the [P&S Act] 
under consideration were broader in scope than antecedent 
legislation such as the Sherman Antitrust Act, sec. 2 of the Clayton 
Act, 15 U.S.C. 13, sec. 5 of the Federal Trade Commission Act, 15 
U.S.C. 45 and sec. 3 of the Interstate Commerce Act, 49 U.S.C. 
3.'').
    \9\ Public Law 74-272, 49 Stat. 648, 648 (1935).
    \10\ H.R. Rep. No. 85-1048 (1957), reprinted in 1958 
U.S.C.C.A.N. 5212, 5213 (emphasis added).
    \11\ Id. at 5213.
    \12\ See, e.g., Stafford v. Wallace, 258 U.S. 495, 513-14 
(1922); Spencer, 841 F.2d at 1455: United States v. Perdue Farms, 
Inc., 680 F.2d 277, 280 (2d Cir. 1982); Bruhn's Freezer Meats of 
Chicago, Inc. v. USDA, 438 F.2d 1332, 1336 (8th Cir. 1971); Bowman 
v. USDA, 363 F.2d 81, 85 (5th Cir. 1966); United States v. Donahue 
Bros., 59 F.2d 1019, 1023 (8th Cir. 1932).
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    Four courts of appeals have disagreed with USDA's interpretation of 
the P&S Act and have concluded (in cases to which the United States was 
not a party) that plaintiffs could not prove their claims under 
sections 202(a) and/or (b) without proving harm to competition or 
likely harm to competition.\13\ After carefully considering the 
analyses in these opinions, USDA continues to believe that its 
longstanding interpretation of the P&S Act is correct. These court of 
appeals opinions (two of which were issued over vigorous dissents) \14\ 
are inconsistent with the plain language of the statute; they 
incorrectly assume that harm to competition was the only evil Congress 
sought to prevent by enacting the P&S Act; and they fail to defer to 
the Secretary of Agriculture's longstanding and consistent 
interpretation of a statute administered by the Secretary. To the 
extent that these courts failed to defer to USDA's interpretation of 
the statute because that interpretation had not previously been 
enshrined in a regulation,\15\ this new regulation may constitute a 
material change in circumstances that warrants judicial reexamination 
of the issue.\16\
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    \13\ Terry v. Tyson Farms, Inc. 604 F.3d 272, 280 (6th Cir. 
2010) (``[I]n order to succeed on a claim under Sec. Sec.  192(a) 
and (b) of the [P&S Act], a plaintiff must show an adverse effect on 
competition.''); Wheeler v. Pilgrim's Pride Corp., 591 F.3d 355, 363 
(5th Cir. 2009) (en banc) (``To support a claim that a practice 
violates subsection (a) or (b) of Sec.  192 [of the P&S Act] there 
must be proof of injury, or likelihood of injury, to 
competition.''); Been v. O.K. Indus., Inc., 495 F.3d 1217,1238 (10th 
Cir. 2007) (An ``unfair practice'' under section 202(a) of the P&S 
Act is one that injures or is likely to injure competition); London 
v. Fieldale Farms Corp., 410 F.3d 1295, 1303 (11th Cir. 2005) (P&S 
Act prohibits only those unfair, discriminatory, or deceptive 
practices that adversely affect or are likely to adversely affect 
competition).
    \14\ Wheeler, 591 F.3d at 371-85 (Garza, J., dissenting); Been, 
495 F.3d at 1238-43 (Hartz, J., concurring in part and dissenting in 
part).
    \15\ See Been, 495 F.3d at 1226-27.
    \16\ See Nat'l Cable & Telecomm. Ass'n v. Brand X Internet 
Servs., 545 U.S. 967, 982-84 (2005).
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    Although it is not necessary in every case to demonstrate 
competitive injury in order to show a violation of sections 202(a) and/
or (b), any act that harms competition or is likely to harm competition 
may violate the statute. How a competitive injury or the likelihood of 
a competitive injury manifests itself depends critically on whether the 
target of the act or practice is a competitor (e.g., a packer harms 
other packers), or whether the target of the act or practice operates 
at a different level of the livestock or poultry production process 
(e.g., a packer harms a livestock producer). Competitive injury or the 
likelihood of competitive injury may occur when an act or practice 
improperly forecloses competition in a large share of the market 
through exclusive dealing, restrains competition among packers, live 
poultry dealers or swine contractors or otherwise represents a use of 
market power to distort competition.\17\ Competitive injury or the 
likelihood of competitive injury also may occur when a packer, swine 
contractor, or live poultry dealer wrongfully depresses prices paid to 
a livestock producer, swine production contract grower, or poultry 
grower below market value or impairs the livestock producer, swine 
production contract grower, or poultry grower's ability to compete with 
other producers or growers.
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    \17\ See, e.g., Thomas G. Krattenmaker & Steven C. Salop, 
Anticompetitive Exclusion: Raising Rivals' Costs to Achieve Power 
over Price, 96 Yale L.J. 209 (1986); 11 Philip E. Areeda & Herbert 
Hovenkamp, Antitrust Law 1821 (2d ed. 2005).
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    To establish an actual or likely competitive injury, it is not 
necessary to show that a challenged act or practice had a likely effect 
on resale price levels. Even the antitrust laws do not require such a 
showing. The P&S Act is broader than the antitrust laws and, therefore, 
such a requirement of showing effect on resale price levels is not 
necessary to establish competitive injury under section 202 of the P&S 
Act (though such a showing would suffice).

III. Discussion of Comments

    The proposed rule published on June 22, 2010, (75 FR 35338) 
provided a 60-day comment period to end on August 23, 2010. In response 
to requests for an extension of time to file comments, on July 28, 
2010, GIPSA extended the comment period to end on November 22, 2010 (75 
FR 44163). Commenters covered the spectrum of those affected by the 
rule, including livestock producers and poultry growers, packers and 
live poultry dealers, trade associations representing both production 
and processing, plant workers, and consumers. GIPSA considered all 
comments postmarked or electronically submitted by November 22, 2010. 
GIPSA received over 61,000 comments, which addressed the rule generally 
as well as specific provisions. GIPSA considered written comments as 
well as comments received at two public meetings, on June 25, 2010, and 
August 27, 2010, conducted jointly by USDA and the Department of 
Justice. Because these ``Workshops on Competition in Agriculture'' were 
held during the comment period for the proposed rule, the Secretary 
announced that any comments made in those forums would be considered 
comments on the proposed rule.
    Comments on proposed Sec.  201.3(c) were sharply divided with 
respect to

[[Page 92569]]

harm to competition. Those supporting the proposal pointed out it would 
provide legal relief for farmers and ranchers who suffer because of 
unfair actions, such as false weighing and retaliatory behavior, 
without having to show competitive harm to the industry. Opposing 
comments relied heavily on the fact that several of the United States 
Courts of Appeals have ruled that harm to competition (or the 
likelihood of harm to competition) is a required element to find a 
violation of sections 202(a) and (b) of the P&S Act.
    Those supporting proposed Sec.  201.3(c) included numerous 
livestock producers and poultry growers and organizations representing 
the interests of farmers and ranchers. Commenters supporting proposed 
Sec.  201.3(c) pointed out that it would reduce the costs of litigation 
for poultry growers and livestock producers who suffer because of 
unfair actions, such as false weighing and retaliation. Proposed Sec.  
201.3(c), according to some commenters, corrects the analytical 
framework of the P&S Act and ensures that the courts grant a higher 
level of deference to USDA's interpretation of the P&S Act. They 
believed it was wrong to require a demonstration of harm to competition 
to the whole industry stemming from an unfair practice targeting an 
individual grower or producer in order to violate section 202(a) of the 
P&S Act, and that proposed Sec.  201.3(c) would remove an undue barrier 
to relief.
    Commenters in favor of proposed Sec.  201.3(c) further pointed out 
the imbalance in power between livestock producers and packers and 
noted that without this provision, the packers are inoculated against 
recourse by a livestock producer because the livestock producer is 
small and overmatched relative to the much larger and more well-
resourced packer. A common theme among supporters was that proposed 
Sec.  201.3(c) allowed farmers and ranchers to seek redress by showing 
that they were individually harmed in cases such as false weighing or 
retaliatory behavior, rather than requiring a showing of harm to 
competition in the industry. Commenters felt that the packers and 
poultry companies were given a free pass to act unfairly toward 
livestock producers, swine production contract growers, and poultry 
growers knowing that proving harm to competition to the industry would 
be difficult, if not impossible, in many situations.
    Many of the supporting comments also addressed the plain language 
and intent of section 202 of the P&S Act and opined that the recent 
court decisions were based on incorrect interpretations of the law. 
Commenters wrote that proposed Sec.  201.3(c) correctly interpreted the 
plain language of section 202 and the legislative history of the P&S 
Act.
    Commenters opposing proposed Sec.  201.3(c) included many meat 
packers, live poultry dealers, and organizations representing packers 
and poultry companies. The opposing comments stated that the P&S Act 
had always been considered an antitrust statute and therefore, GIPSA 
should be required to show competitive harm to allege a violation of 
section 202(a). They also expressed concern that a flood of litigation 
would ensue if the scope of section 202(a) did not remain closely 
aligned with case law. Commenters opposed to the rulemaking asserted 
that allowing allegations of section 202(a) violations without a 
showing of harm or likely harm to competition would enable swine 
production contract growers, poultry growers, or livestock producers to 
sue a swine contractor, live poultry dealer, or packer for aa broad 
range of adverse circumstances affecting them. The comments went on to 
say that this would guarantee swine production contract growers, 
poultry growers, and livestock producers a profit on every transaction, 
a standard afforded in no other industry. In turn, this would reduce 
the number of swine production contract growers, poultry growers, and 
livestock producers with whom companies would do business.
    Opposing comments relied heavily on the fact that several United 
States Courts of Appeals have ruled that harm to competition (or the 
likelihood of harm to competition) is a required element to find a 
violation of sections 202(a) and (b) of the P&S Act. These commenters 
stated that because of the decisions in these circuit courts, GIPSA 
lacked authority to implement proposed Sec.  201.3(c). Several large 
packers and poultry companies wrote that the proposed Sec.  201.3(c), 
if implemented, would be in direct conflict with circuit court 
decisions in the geographic regions in which they do business. One 
packer commented that livestock producers would bear the cost of 
determining the legality of an expanded scope of sections 202(a) and 
202(b).
    Many opposing commenters felt that proposed Sec.  201.3(c) would 
lead to a large increase in frivolous litigation and greatly increase 
operational costs for packers and poultry companies. Commenters felt 
that an increase in frivolous litigation would lead to a decrease in 
the use of the value-based pricing. Commenters opposed allowing 
livestock producers to file lawsuits based on their thoughts of what is 
unfair. Some commenters believed that proposed Sec.  201.3(c) would 
eliminate the requirement to show any harm at all. A common concern 
presented by those in opposition to the proposed change to Sec.  201.3 
was that while section 202(a) prohibits unfair, unjustly 
discriminatory, or deceptive practices, the P&S Act does not define 
what types of conduct would be classified as such. Of particular 
concern to these commenters was the prospect that GIPSA may bring 
actions under section 202(a) without a finding of harm to competition 
which would encourage livestock producers to sue firms subject to the 
P&S Act for any conduct having an adverse effect on livestock producer 
interests. While most of the comments focused on unfair conduct that 
could violate section 202(a), a few comments mentioned section 202(b) 
as well. These comments set forth concerns calling for regulatory 
guidance as to what conduct GIPSA would deem as unfair, unjustly 
discriminatory, or deceptive, and an undue preference or advantage in 
violation of the P&S Act, especially when there was no showing of harm 
to competition.
    Agency response: GIPSA did not make the specific changes to 
proposed Sec.  201.3(c) requested by comments. However, GIPSA is 
proposing new rule language in proposed rules Sec. Sec.  201.210, 
201.211, and 201.214, that provide the guidance commenters were 
seeking. GIPSA also modified a few words in Sec.  201.3(c) to make the 
language internally consistent and to make it consistent with the 
language in new proposed Sec. Sec.  201.210, 201.211, and 201.214, 
published concurrently in this issue of the Federal Register as two 
separate proposed rules. Specifically, proposed Sec. Sec.  201.210 and 
201.211 discuss ``conduct or action'' and GIPSA has modified the 
references to ``conduct'' in proposed Sec.  201.3(c) to ``conduct or 
action.'' GIPSA also changed the reference to ``challenged act or 
practice'' to ``challenged conduct or action,'' again for consistency 
with proposed Sec. Sec.  201.210 and 201.211 and to make the language 
in Sec.  201.3(a) internally consistent. In the proposed rule for Sec.  
201.214 in this issue of the Federal Register, GIPSA proposes listing 
the failure to use a poultry grower ranking system in a fair manner 
after applying the criteria in Sec.  201.214 as a tenth type of 
``challenged conduct or action'' under Sec.  201.210(b). GIPSA also 
made a minor grammatical edit and changed all references to ``section'' 
to ``sections.'' GIPSA believes the paragraph proposed on June 22, 
2010, as Sec.  201.3(c) (``Scope of Sections 202(a) and (b) of the 
Act.'') is of primary

[[Page 92570]]

importance. As a result, the paragraph is designated as paragraph (a) 
and the current text in Sec.  201.3 is designated as paragraph (b).
    It is the longstanding position of the Secretary of Agriculture 
that a violation of section 202(a) or (b) can be proven without 
evidence of competitive injury or the likelihood of competitive injury. 
The Secretary's position is consistent with the language and structure 
of the P&S Act, as well as its legislative history and purposes. 
Sections 202(c), 202(d), and 202(e) of the P&S Act include 
``restraint'' and ``monopoly'' language, some of which resembles 
language in the Clayton Act, 15 U.S.C. 12-27. Neither section 202(a) 
nor section 202(b) contains language limiting the application to 
conduct or action that has an adverse effect, or the likelihood of an 
adverse effect, on competition, such as acts ``restraining commerce.'' 
Sections 202(a) and 202(b) are tort-like provisions that are concerned 
with unfair practices, discrimination, and preferential treatment, but 
not with restraint of trade or monopolistic activities.
    Analysis of the Federal Trade Commission Act, 15 U.S.C. 41-58, as 
amended, (FTC Act) is helpful in illustrating the Secretary's position 
on the scope of sections 202(a) and 202(b) of the P&S Act. Congress 
considered the FTC Act in drafting the P&S Act as it incorporated 
portions of the FTC Act by reference into the P&S Act. Section 5 of the 
FTC Act, now codified at 15 U.S.C. 45, states, ``[u]nfair methods of 
competition in or affecting commerce, and unfair or deceptive acts or 
practices in or affecting commerce, are hereby declared unlawful.'' 
Thus, in the FTC Act, Congress makes a distinction between ``unfair 
methods of competition'' and ``unfair or deceptive acts or practices.'' 
In drafting the P&S Act, Congress chose to prohibit any ``unfair, 
unjustly discriminatory, or deceptive practice or device,'' and the 
making or giving of ``any undue or unreasonable preference or advantage 
. . .,'' without limiting the unfair practices or devices, 
discrimination, or preferential treatment to only those involving 
competition. The Supreme Court of the United States has examined the 
scope of Section 5 of the FTC Act, noting that unfair practices are not 
limited to those likely to have anticompetitive consequences after the 
manner of the antitrust laws, nor are unfair practices in commerce 
confined to purely competitive behavior.\18\ The FTC Act's phrase, 
```unfair or deceptive acts or practices' '' makes the consumer, who 
may be injured by an unfair trade practice, of equal concern, before 
the law, with the merchant or manufacturer injured by the unfair 
methods of a dishonest competitor.'' \19\ The Court also noted, upon 
consideration of legislative and judicial authorities, that the Federal 
Trade Commission considers public values beyond simply those enshrined 
in the letter or encompassed in the spirit of the antitrust laws.\20\
    Recent circuit court decisions have found that a showing of 
competitive harm, or a likelihood of competitive harm, is required to 
substantiate a violation of sections 202(a) and 202(b) of the P&S Act. 
In one of these cases, Wheeler v. Pilgrim's Pride Corp.,\21\ while the 
majority opinion required a finding of harm to competition, the 
dissenting opinion agreed with the district court's ruling that 
sections (a) and (b) of 202 do not contain language limiting their 
application to actions which have an adverse effect on competition.\22\ 
The court in another case, Been v. O.K. Indus., Inc.,\23\ declined to 
defer to USDA's interpretation of ``unfair'' practices under section 
202(a) of the P&S Act, in part, because ``the Secretary has not 
promulgated a regulation applicable to the practices the Growers allege 
violate Sec.  202(a).'' \24\ The court, however, stated that 
``[r]egulations promulgated by an agency exercising its congressionally 
granted rule-making authority'' are entitled to deference,\25\ implying 
that such regulation, once enacted by USDA, would be entitled to 
deference. Therefore, while decisions of the courts of appeals support 
comments in opposition to amending Sec.  201.3, these same decisions 
have also pointed to a need for the very rulemaking the addition of 
paragraph (a) to Sec.  201.3 provides.
---------------------------------------------------------------------------

    \18\ FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972).
    \19\ Id., at 244. (quoting H.R.Rep.No.1613, 75th Cong., 1st 
Sess., 3 (1937).
    \20\ Id., at 244.
    \21\ 591 F. 3d 355 (5th Cir. 2009).
    \22\ Id. at 377 (Garza, J., dissenting).
    \23\ 495 F. 3d 1217 (10th Cir. 2007).
    \24\ Id. at 1226-27.
    \25\ Id. at 1226.
---------------------------------------------------------------------------

    An initial increase in litigation costs is a likely result of this 
rule, as the industry and the courts are setting precedents for the 
interpretation of Sec.  201.3. However, the litigation costs and the 
number of lawsuits are expected to decrease after precedent setting 
decisions are established. In order to place some parameters on conduct 
or action that constitutes unfair, unjustly discriminatory, and 
deceptive practices or devices under section 202(a), and on conduct or 
action that constitutes undue or unreasonable preferences or advantages 
under section 202(b), and to address concerns raised by commenters 
about what those terms mean, GIPSA is publishing concurrently with this 
interim final rule, proposed rules that will include revised Sec. Sec.  
201.210,201.211, and 201.214, which will help clarify the conduct or 
action GIPSA considers violations of sections 202(a) and 202(b) of the 
P&S Act.
    Contrary to some comments, Sec.  201.3(a) does not stand for the 
proposition that GIPSA never has to demonstrate that the challenged 
conduct or action adversely affects competition. Instead, Sec.  
201.3(a) solely reiterates GIPSA's longstanding position that a finding 
that the challenged conduct or action adversely affects or is likely to 
adversely affect competition is not necessary in all cases. Certain 
conduct is prohibited because it is unfair, unjustly discriminatory or 
deceptive even though there may be no harm, or likelihood of harm, to 
competition. Likewise, certain conduct is prohibited because it creates 
an unfair preference or advantage even though there may be no harm, or 
likelihood of harm, to competition. This rule, combined with the 
specific examples of prohibited conduct in proposed Sec.  201.210 and 
the criteria the Secretary will consider as set forth in proposed Sec.  
201.211, will assist industry participants in understanding which 
behaviors violate sections 202(a) and 202(b) of the P&S Act.

IV. Interim Final Rule and Request for Comments

    As previously discussed, GIPSA published a notice of proposed 
rulemaking in June, 2010, that, inter alia, proposed regulatory text 
relating to the scope of the P&S Act. GIPSA solicited comments over a 5 
month period and received thousands of comments on this aspect of the 
proposed rule. Accordingly, the agency has fulfilled the notice and 
comment requirements of the Administrative Procedure Act. However, 
given the significant level of stakeholder interest in this regulatory 
provision, the intervening six years, and in the interests of open and 
transparent government, the agency has decided to promulgate the rule 
as an interim final rule and provide an additional opportunity for 
public comment. The agency will consider all comments received by the 
date indicated in the DATES section of this interim final rule with 
request for comments. After the comment period closes, the agency 
intends to publish another document in the Federal Register. The 
document will

[[Page 92571]]

include a discussion of any comments received and whether any 
amendments will be made to the rule.

V. Concurrent Publication of Proposed Sec. Sec.  201.210, 201.211, and 
201.214

    While some appellate courts have determined that a showing of 
competitive injury, or likelihood of competitive injury, is required to 
allege a violation of sections 202(a) or 202(b), some dissenting 
opinions agreed with USDA's interpretation of sections 202(a) and 
202(b) \26\ and at least one dissenting opinion stated that if GIPSA 
developed regulation explaining whether a showing of competitive injury 
was required in a given circumstance, that regulation would entitle 
USDA to deference.\27\ Amending Sec.  201.3 with the addition of Sec.  
201.3(a) provides a structural foundation for the development of more 
specific regulations containing examples or criteria GIPSA may then use 
to determine if given conduct or action requires a showing of 
competitive injury or the potential for competitive injury to allege a 
violation of section 202(a) or section 202(b). As mentioned in the 
summary of comments, implementation of these specific regulations may 
lower costs to some livestock producers, swine production contract 
growers and poultry growers should they bring legal action for an 
alleged violation of section 202(a) or section 202(b). GIPSA 
acknowledges that Sec.  201.3(a) may initially encourage litigation, 
temporarily driving up overall costs for stakeholders. While this 
interim rule is a standalone rulemaking, it is worth noting that 
GIPSA's current thinking is also expressed in separate proposed rules 
published concurrently in this edition of the Federal Register. GIPSA 
is proposing Sec.  201.210, which clarifies the conduct or action by 
packers, swine contractors, or live poultry dealers that GIPSA 
considers unfair, unjustly discriminatory, or deceptive and a violation 
of section 202(a), and clarifies whether a showing of harm to 
competition or likelihood of harm to competition is required. GIPSA is 
also proposing Sec.  201.211, which identifies criteria the Secretary 
will consider in determining whether conduct or action by packers, 
swine contractors, or live poultry dealers constitutes an undue or 
unreasonable preference or advantage and a violation of section 202(b). 
Section 201.214, as proposed in this edition of the Federal Register, 
lists criteria the Secretary will consider in determining whether a 
live poultry dealer has used a poultry grower ranking system to 
compensate poultry growers in an unfair, unjustly discriminatory, or 
deceptive manner in violation of section 202(a), or in a way that gives 
an undue or unreasonable preference or advantage to any poultry grower 
or subjects any poultry grower to an undue or unreasonable prejudice or 
disadvantage in violation of section 202(b). GIPSA believes Sec. Sec.  
201.210, 201.211, and 201.214, once published as final rules, will 
mitigate potential costs associated with Sec.  201.3(a) by clarifying 
what conduct or action would violate section 202(a) and section 202(b). 
Listing examples and criteria to explain the boundaries for compliance 
with section 202 of the P&S Act will promote compliance and reduce the 
number of disputes associated with section 202. Even while proposed 
Sec. Sec.  201.210, 201.211, and 201.214 are being considered through 
the rulemaking process, amending Sec.  201.3 with the addition of Sec.  
201.3(a) provides sufficient clarity to obtain deference from the 
courts.
---------------------------------------------------------------------------

    \26\ Wheeler v. Pilgrim's Pride Corp., 591 F.3d 355(5th Cir. 
2009) (9-7 decision en banc) (Judge Garza dissenting, joined by 
Judges Jolly, Barksdale, Dennis, Prado, Elrod and Haynes).
    \27\ Been v. O.K. Indus., Inc., 495 F.3d 1217, 1238 (10th Cir. 
2007).
---------------------------------------------------------------------------

VI. Required Impact Analyses

A. Executive Order 12866 and Regulatory Flexibility Act

    This rulemaking has been determined to be ``economically 
significant'' for the purposes of Executive Order 12866 and, therefore, 
has been reviewed by the Office of Management and Budget. GIPSA is 
issuing this interim final rule under the P&S Act, in part, to 
formalize USDA's position that, in some cases, a violation of section 
202(a) or (b) can be proven without proof of competitive injury or 
likelihood of competitive injury. As a required part of the regulatory 
process, GIPSA prepared an economic analysis of Sec.  201.3(a). The 
first section of the analysis is an introduction and a discussion of 
the prevalence of contracting in the cattle, hog, and poultry 
industries as well as a discussion of potential market failures. Next, 
GIPSA discusses three regulatory alternatives it considered and 
presents a summary cost-benefit analysis of each alternative. GIPSA 
then discusses the impact on small businesses.
Introduction
    GIPSA issued a proposed rule on June 22, 2010, which included 
Sec. Sec.  201.3, 201.210, 201.211, 201.214. GIPSA is issuing 
amendments to Sec.  201.3 as an interim final rule and is proposing new 
versions of Sec. Sec.  201.210 and 201.211 in a separate proposed rule 
published concurrently in this issue of the Federal Register. Likewise, 
201.214 is being proposed in a separate rulemaking. Section 201.3(a) 
formalizes GIPSA's longstanding position that conduct or action can be 
found to violate sections 202(a) and/or 202(b) of the P&S Act without a 
finding of harm or likely harm to competition. GIPSA believes the 
interim final Sec.  201.3(a) will serve to strengthen the protection 
afforded the nation's livestock producers and poultry growers.
    Section 201.3(a) states that a finding that the challenged conduct 
or action adversely affects or is likely to adversely affect 
competition is not necessary in all cases . . . Some unfair, unjustly 
discriminatory, or deceptive practices do not result in competitive 
harm to the industry but still result in significant harm to individual 
livestock producers, swine production contract growers, and poultry 
growers. If, for example, a livestock producer, swine production 
contract grower, or poultry grower filed a complaint related to a 
matter that does not result in competitive harm, such as retaliatory 
conduct, use of inaccurate scales, or providing a poultry grower sick 
birds, the livestock producer, swine production contract grower, or 
poultry grower will be able to prevail without proof of harm to 
competition or the likelihood of harm to competition. GIPSA believes 
the standard articulated in Sec.  201.3(a) is consistent with its 
mission, which is to ``protect fair trade practices, financial 
integrity and competitive markets for livestock, meats and poultry.'' 
\28\ By removing the burden to prove harm or likely harm to competition 
in all cases, this interim final rule promotes fairness and equity in 
the livestock and poultry industries.
---------------------------------------------------------------------------

    \28\ https://www.gipsa.usda.gov/laws/law/PS_act.pdf. Accessed on 
September 19, 2016.
---------------------------------------------------------------------------

    Section 201.3(a) may lower the costs to some livestock producers, 
swine production contract growers, and poultry growers should they 
bring legal action for an alleged violation of sections 202(a) and/or 
202(b). However, Sec.  201.3(a) may initially increase litigation costs 
for the livestock and poultry industries while precedent setting 
decisions are established. While this interim rule is a standalone 
rulemaking, it is worth noting that GIPSA's current thinking is also 
expressed in separate proposed rules, which will clarify to the 
industry the types of conduct and criteria that GIPSA believes violate 
section 202(a) and section 202(b) of the P&S Act.
    Proposed Sec.  201.210(a) specifies that any conduct or action by a 
packer, swine contractor, or live poultry dealer that is explicitly 
deemed to be an

[[Page 92572]]

``unfair,'' ``unjustly discriminatory,'' or ``deceptive'' practice or 
device by the P&S Act is a per se violation of section 202(a). Section 
201.210(b) provides examples of conduct or action that, absent 
demonstration of a legitimate business justification, are ``unfair,'' 
``unjustly discriminatory,'' or ``deceptive'' and a violation of 
section 202(a) regardless of whether the conduct or action harms or is 
likely to harm competition. Section 201.210(c) specifies that any 
conduct or action that harms or is likely to harm competition is an 
``unfair,'' ``unjustly discriminatory,'' or ``deceptive'' practice or 
device and a violation of section 202(a). Many of the examples provided 
in Sec.  201.210(b) relate to conduct or action that limits, by 
contract, the legal rights and remedies afforded by law to poultry 
growers, swine production contract growers, and livestock producers. 
Other examples specify conduct or actions that violate section 202(a).
    As required by the 2008 Farm Bill, proposed Sec.  201.211 specifies 
criteria the Secretary will consider when determining whether an undue 
or unreasonable preference or advantage has occurred in violation of 
section 202(b). The first four (4) criteria require the Secretary to 
consider whether one or more livestock producers, swine production 
contract growers, or poultry growers is treated more favorably as 
compared to other similarly situated livestock producers, swine 
production contract growers, or poultry growers. The fifth criterion in 
Sec.  201.211 requires the Secretary to consider whether the packer, 
swine contractor, or live poultry dealer has demonstrated a legitimate 
business justification for conduct or action that may otherwise be an 
undue or unreasonable preference or advantage.
    Proposed Sec. Sec.  201.210 and 201.211 will thus limit the 
application of Sec.  201.3(a) by placing some parameters on conduct or 
action that constitutes unfair, unjustly discriminatory, and deceptive 
practices or devices under section 202(a), and on conduct or action 
that constitutes undue or unreasonable preferences or advantages under 
section 202(b). Proposed Sec. Sec.  201.210 and 201.211 focus heavily 
on contracts between livestock producers and packers, swine production 
contract growers and swine contractors, and poultry growers and live 
poultry dealers.
    While proposed Sec. Sec.  201.210 and 201.211 focus heavily on 
contracts, Sec.  201.3(a) is broad in nature. It applies to the use of 
all types of livestock and poultry procurement and growing arrangements 
by packers, swine contractors, and live poultry dealers, including 
packers' use of negotiated cash purchases of livestock. As discussed 
below, contracting broadly defined, is the primary method by which 
livestock are procured (especially for hogs) and the almost exclusive 
arrangement under which poultry are produced. A discussion of 
contracting in these industries is, therefore, useful in explaining the 
need for Sec.  201.3(a) and laying the foundation for the economic 
analysis of 201.3(a).
Prevalence of Contracting in Cattle, Hog, and Poultry Industries
    Contracting is an important and prevalent feature in the production 
and marketing of livestock and poultry. Although Sec.  201.3(a) applies 
to the livestock and poultry industries in general, proposed Sec. Sec.  
201.210 and 201.211 primarily affect livestock and poultry grown or 
marketed under contract. For example, under Sec.  201.210(b)(2), absent 
demonstration of a legitimate business justification, GIPSA considers 
conduct or action by packers, swine contractors, or live poultry 
dealers that limit or attempt to limit, by contract, the legal rights 
and remedies of livestock producers, swine production contract growers, 
or poultry growers as unfair, unjustly discriminatory, or deceptive and 
a violation of section 202(a) regardless of whether the conduct or 
action harms or is likely to harm competition. Section 201.211 defines 
criteria for section 202(b) violations with respect to providing undue 
or unreasonable preferences or advantages to one or more livestock 
producers or contract growers as compared to other livestock producers 
or contract growers.
    The type of contracting varies among cattle, hogs, and poultry. 
Broilers, the largest segment of poultry, are almost exclusively grown 
under production contracts, while a small percentage of cattle are 
custom fed and shipped directly for slaughter this activity is not 
subject to the jurisdiction of the P&S Act. Hog production falls 
between these two extremes. As shown in Table 1 below, over 96 percent 
of all broilers are grown under contractual arrangements and over 40 
percent of all hogs are grown under contractual arrangements. Live 
poultry dealers typically own the broilers and provide the growers with 
feed and medications. Contract growers provide the housing, labor, 
water, electricity and fuel to grow the birds. Similarly, swine 
contractors typically own the slaughter hogs and sell the finished hogs 
to pork packers. The swine contractors typically provide feed and 
medication to the contract growers who own the growing facilities and 
provide growing services. With the exception of turkey production, the 
use of contract growing arrangements has remained relatively stable 
over the years that the Census of Agriculture has published data on 
commodities raised and delivered under production contracts as Table 1 
shows.
---------------------------------------------------------------------------

    \29\ Agricultural Census, 2007 and 2012. https://www.agcensus.usda.gov/Publications/2012/Full_Report/Volume_1,_Chapter_1_US/ and https://www.agcensus.usda.gov/Publications/2007/Full_Report/Volume_1,_Chapter_1_US/.

          Table 1--Percentage of Poultry and Hogs Raised and Delivered Under Production Contracts \29\
----------------------------------------------------------------------------------------------------------------
                             Species                                   2002            2007            2012
----------------------------------------------------------------------------------------------------------------
Broilers........................................................            98.0            96.5            96.4
Turkeys.........................................................            41.7            67.7            68.5
Hogs............................................................            42.9            43.3            43.5
----------------------------------------------------------------------------------------------------------------

    Another contract category is marketing contracts, where producers 
market their livestock to a packer for slaughter under a verbal or 
written agreement. These are commonly referred to as Alternative 
Marketing Arrangements (AMAs). Pricing mechanisms vary across AMAs. 
Some AMAs rely on a spot market for at least one aspect of its price, 
while others involve complicated pricing formulas with premiums and 
discounts based on carcass merits. The livestock seller and packer 
agree on a pricing mechanism under AMAs, but usually not on a specific 
price.
    USDA's Agricultural Marketing Service (AMS) reports the number of

[[Page 92573]]

cattle sold to packers under formula, forward contract, and negotiated 
pricing mechanisms. The following table illustrates the prevalence of 
contracting in the marketing of fed cattle.

                          Table 2--Percentage of Fed Cattle Sold by Type of Purchase 30
----------------------------------------------------------------------------------------------------------------
                                                                                      Forward
                              Year                                    Formula        contract       Negotiated
----------------------------------------------------------------------------------------------------------------
2005............................................................            30.4             5.0            64.6
2006............................................................            31.5             6.8            61.7
2007............................................................            33.2             8.3            58.5
2008............................................................            37.4             9.9            52.7
2009............................................................            43.7             7.0            49.3
2010............................................................            44.9             9.5            45.6
2011............................................................            48.4            10.9            40.7
2012............................................................            54.7            11.4            33.8
2013............................................................            60.0            10.2            29.8
2014............................................................            58.1            14.2            27.6
2015............................................................            58.2            16.5            25.3
----------------------------------------------------------------------------------------------------------------

    GIPSA considers cattle sold under formula pricing methods as sold 
under AMA contracts. Thus, the first two columns in the above table are 
cattle marketed under contract and the third column represents the spot 
market for fed cattle. The data in the table above show that the 
contracting of cattle has increased significantly since 2005. 
Approximately 35 percent of fed cattle were marketed under contracts in 
2005. By 2015, the percentage of fed cattle marketed to packers under 
contracts had increased to almost 75 percent, while negotiated spot 
market transactions have decreased to about 25 percent of all 
transactions.
---------------------------------------------------------------------------

    \30\ USDA's Agricultural Marketing Service. https://mpr.datamart.ams.usda.gov/menu.do?path=Products\Cattle\Weekly. 
Accessed on September 9, 2016
---------------------------------------------------------------------------

    As discussed above, over 40 percent of hogs are grown under 
production contracts. These hogs are then sold by swine contractors to 
packers under marketing contracts. The prevalence of marketing 
contracts in the sale of finished hogs, which includes production 
contract and non-production contract hogs, to packers is even more 
prevalent as shown in the table below.

                             Table 3--Percentage of Hogs Sold by Type of Purchase 31
----------------------------------------------------------------------------------------------------------------
                                                                       Other
                                                                     marketing
                              Year                                 arrangements     Formula 33      Negotiated
                                                                        32
----------------------------------------------------------------------------------------------------------------
2005............................................................            39.3            49.7            11.0
2006............................................................            44.0            46.4             9.6
2007............................................................            44.8            46.5             8.7
2008............................................................            43.9            47.6             8.5
2009............................................................            42.8            50.4             6.8
2010............................................................            45.4            49.4             5.2
2011............................................................            47.6            48.2             4.2
2012............................................................            47.7            48.6             3.6
2013............................................................            48.3            48.4             3.2
2014............................................................            45.9            51.4             2.7
2015............................................................            46.0            51.4             2.6
----------------------------------------------------------------------------------------------------------------

    Similar to cattle, the percentage of hogs sold under marketing 
contracts has increased since 2005 to over 97 percent in 2015. The spot 
market for hogs has declined to 2.6 percent in 2015. As these data 
demonstrate, almost all hogs are marketed under some type of marketing 
contract.
---------------------------------------------------------------------------

    \31\ USDA's Agricultural Marketing Service.
    \32\ Includes Packer Owned and Packer Sold, Other Purchase 
Arrangements.
    \33\ Includes Swine Pork Market Formula, Other Market Formula.
---------------------------------------------------------------------------

Benefits of Contracting in Cattle, Hog, and Poultry Industries
    Contracts have many benefits. They help farmers and livestock 
producers manage price and production risks, elicit the production of 
products with specific quality attributes by tying prices to those 
attributes, and smooth the flows of commodities to processing plants 
encouraging more efficient use of farm and processing capacities. 
Agricultural contracts can also lead to improvements in efficiency 
throughout the supply chain for products by providing farmers with 
incentives to deliver products consumers desire and produce products in 
ways that reduce processing costs and, ultimately, retail prices.
    In 2007, RTI International conducted a comprehensive study of 
marketing practices in the livestock and red meat industries from 
farmers to retailers (the RTI Study).\34\ The RTI Study analyzed the 
extent of use, price relationships, and costs and benefits of 
contracting, including AMAs. The RTI Study found that AMAs increased 
the economic efficiency of the livestock markets and yielded economic 
benefits to consumers, producers and packers.
---------------------------------------------------------------------------

    \34\ RTI International, 2007, GIPSA Livestock and Meat Marketing 
Study, Prepared for GIPSA.
---------------------------------------------------------------------------

    The RTI Study found that efficiencies come from less volatility in 
volume and

[[Page 92574]]

more intensive use of production and processing facilities, meaning 
less capital, labor, feed, and materials per pound of meat produced. 
Efficiencies also come from reduced transaction costs and from sending 
price signals to better match the meat attributes to consumer demand. 
Consumers benefit from lower meat prices and meat with desired 
attributes. In turn, the consumer benefits increase livestock demand, 
which provides benefits to producers.
Structural Issues in the Cattle, Hog, and Poultry Industries
    As the above discussion highlights, there are important benefits 
associated with the use of agriculture contracts in the cattle, hog, 
and poultry industries. However, if there are large disparities in the 
bargaining power among contracting parties resulting from size 
differences between contracting parties or the use of market power by 
one of the contracting parties, the contracts may have detrimental 
effects on one of the contracting parties and may result in 
inefficiencies in the marketplace.
    For example, a contract that ties a grower to a single purchaser of 
a specialized commodity or service, even if the contract provides for 
fair compensation to the grower, still leaves the grower subject to 
default risks should the contractor fail. Another example is a contract 
that covers a shorter term than the life of the capital (a poultry 
house, for example). The grower may face the hold-up risk that the 
contractor may require additional capital investments or may impose 
lower returns at the time of contract renewal. Hold-up risk is a 
potential market failure and is discussed in detail in the next 
section. These risks may be heightened when there are no alternative 
buyers for the grower to switch to, or when the capital investment is 
specific to the original buyer.\35\ Some growers make substantial long-
term capital investments as part of livestock or poultry production 
contracts, including land, poultry or hog houses, and equipment. Those 
investments may tie the grower to a single contractor or integrator. 
Costs associated with default risks and hold-up risks are important to 
many growers in the industry. The table below shows the number of 
integrators that broiler growers have in their local areas by percent 
of total farms and by total production.
---------------------------------------------------------------------------

    \35\ See Vukina and Leegomonchai, Oligopsony Power, Asset 
Specificity, and Hold-Up: Evidence From The Broiler Industry, 
American Journal of Agricultural Economics, 88(3): 589-605 (August 
2006).
    \36\ MacDonald, James M. Technology, Organization, and Financial 
Performance in U.S. Broiler Production. USDA, Economic Research 
Service, June 2014.
    \37\ Percentages were determined from the USDA Agricultural 
Resource Management Survey (ARMS), 2011. ``Respondents were asked 
the number of integrators in their area. They were also asked if 
they could change to another integrator if they stopped raising 
broilers for their current integrator.'' Ibid. p. 30

                                Table 4--Integrator Choice for Broiler Growers 36
----------------------------------------------------------------------------------------------------------------
                                                             Percent of total                    Can change to
       Integrators in grower's area 37       ------------------------------------------------ another integrator
                                                   Farms           Birds        Production    (percent of farms)
----------------------------------------------------------------------------------------------------------------
Number:
    1.......................................            21.7            23.4            24.5                   7
    2.......................................            30.2            31.9            31.7                  52
    3.......................................            20.4            20.4            19.7                  62
    4.......................................            16.1            14.9            14.8                  71
    >4......................................             7.8             6.7             6.6                  77
    No Response.............................             3.8             2.7             2.7                  Na
----------------------------------------------------------------------------------------------------------------

    The data in the table show that 52 percent of broiler growers, 
accounting for 56 percent of total production, report having only one 
or two integrators in their local areas. This limited integrator choice 
may accentuate the contract risks. A 2006 survey indicated that growers 
facing a single integrator received 7 to 8 percent less compensation, 
on average, than farmers located in areas with 4 or more 
integrators.\38\ If live poultry dealers already possess some market 
power to force prices for poultry growing services below competitive 
levels, some contracts can extend that power by raising the costs of 
entry for new competitors, or allowing for price discrimination.\39\
---------------------------------------------------------------------------

    \38\ MacDonald, J. and N. Key. ``Market Power in Poultry 
Production Contracting? Evidence from a Farm Survey.'' Journal of 
Agricultural and Applied Economics. 44(4) (November 2012): 477-490.
    \39\ See, for example, Williamson, Oliver E. Markets and 
Hierarchies: Analysis and Antitrust Implications, New York: The Free 
Press (1975); Edlin, Aaron S. & Stefan Reichelstein (1996) 
``Holdups, Standard Breach Remedies, and Optimal Investment,'' The 
American Economic Review 86(3): 478-501 (June 1996).
---------------------------------------------------------------------------

    Many beef, pork, and poultry processing markets face barriers to 
entry, including; (1) Economies of scale; (2) high asset-specific 
capital costs with few alternative uses of the capital; (3) brand 
loyalty of consumers, customer loyalty to the incumbent processors, and 
high customer switching costs; and (4) governmental food safety, bio-
hazard, and environmental regulations. Consistent with these barriers, 
there has been limited new entry.
    However, an area where entry has been successful is in developing 
and niche markets, such as organic meat and free-range chicken. 
Developing and niche markets have a relatively small consumer market 
that is willing to pay higher prices, which supports smaller plant 
sizes. Niche processors are generally small, however, and do not offer 
opportunities to many producers or growers.
    Economies of scale have resulted in large processing plants in the 
beef, pork, and poultry processing industries. The barriers to entry 
discussed above may have limited the entry of new processors, which 
limits the expansion of choice of processors to which livestock 
producers market their livestock. Barriers to entry also limit the 
expansion of choice for poultry growers who have only one or two 
integrators in their local areas with no potential entrants on the 
horizon. The limited expansion of choice of processors by livestock 
producers, swine production contract growers, and poultry growers may 
limit contract choices and the bargaining power of producers and 
growers in negotiating contracts.
    One indication of potential market power is industry 
concentration.\40\ The following table shows the level of concentration 
in the livestock and

[[Page 92575]]

poultry slaughtering industries for 2005-2015.
---------------------------------------------------------------------------

    \40\ For additional discussion see MacDonald, J.M. 2016 
``Concentration, contracting, and competition policy in U.S. 
agribusiness,'' Competition Law Review, No. 1-2016: 3-8.
    \41\ The data on cattle and hogs were compiled from USDA's NASS 
data of federally inspected slaughter plants. Data on broilers and 
turkeys were compiled from Packers and Stockyards industry annual 
reports. Both data sources are proprietary.

                     Table 5--Four-Firm Concentration in Livestock and Poultry Slaughter 41
----------------------------------------------------------------------------------------------------------------
                                                     Steers &
                      Year                          heifers (%)      Hogs (%)      Broilers (%)     Turkeys (%)
----------------------------------------------------------------------------------------------------------------
2005............................................              80              64            n.a.            n.a.
2006............................................              81              61            n.a.            n.a.
2007............................................              80              65              57              52
2008............................................              79              65              57              51
2009............................................              86              63              53              58
2010............................................              85              65              51              56
2011............................................              85              64              52              55
2012............................................              85              64              51              53
2013............................................              85              64              54              53
2014............................................              83              62              51              58
2015............................................              85              66              51              57
----------------------------------------------------------------------------------------------------------------

    The table above shows the concentration of the four largest steer 
and heifer slaughterers has remained relatively stable between 79 and 
86 percent since 2005. Hog and broiler slaughter concentration has also 
remained relatively steady at over 60 percent and 50 percent, 
respectively.
    The data in Table 5 are estimates of national concentration and the 
size differences discussed below are also at the national level, but 
the economic markets for livestock and poultry may be regional or 
local, and concentration in regional or local areas may be higher than 
national measures. For example, while poultry markets may appear to be 
the least concentrated in terms of the four-firm concentration ratios 
presented above, economic markets for poultry growing services are more 
localized than markets for fed cattle or hogs, and local concentration 
in poultry markets is greater than in hog and other livestock 
markets.\42\ The data presented earlier in Table 4 highlight this issue 
by showing the limited ability a poultry grower has to switch to a 
different integrator. As a result, national concentration may not 
demonstrate accurately the options poultry growers in a particular 
region actually face.
---------------------------------------------------------------------------

    \42\ MacDonald and Key (2012) Op. Cit. and Vukina and 
Leegomonchai (2006) Op. Cit.
---------------------------------------------------------------------------

    Empirical evidence does not show a strong or simple relationship 
between increases in concentration and increases in market power. Other 
factors matter, including the ease of entry by new producers into a 
concentrated industry and the ease with which retail food buyers or 
agricultural commodity sellers can change their buying or marketing 
strategies in response to attempts to exploit market power.
    For example, in 2009, the Government Accountability Office (GAO) 
reviewed 33 studies published since 1990 that were relevant for 
assessing the effect of concentration on commodity or food prices in 
the beef, pork, or dairy sectors.\43\ Most of the studies found no 
evidence of market power, or found that the efficiency gains from 
concentration were larger than the market power effects. Efficiency 
gains would be larger if increased concentration led to reduced 
processing costs (likely to occur if there are scale economies \44\ in 
processing), and if the reduced costs led to a larger effect on prices 
than the opposing impact of fewer firms. For example, with respect to 
beef processing, the GAO report concluded that concentration in the 
beef processing sector has been, overall, beneficial because the 
efficiency effects dominated the market power effects, thereby reducing 
farm-to-wholesale beef margins.
---------------------------------------------------------------------------

    \43\ United States Government Accountability Office. 
Concentration in Agriculture. GAO-09-746R. Enclosure II: Potential 
Effects of Concentration on Agricultural Commodity and Retail Food 
Prices.
    \44\ Scale economies are present when average production costs 
decrease as output increases.
---------------------------------------------------------------------------

    Several studies reviewed by the GAO did find evidence of market 
power in the retail sector, in that food prices exceeded competitive 
levels or that commodity prices fell below competitive levels. However, 
the GAO study also concluded that it was not clear whether market power 
was caused by concentration or some other factor. In interviews with 
experts, the GAO report concluded that increases in concentration may 
raise greater concerns in the future about the potential for market 
power and the manipulation of commodity or food prices.
    Another factor GIPSA considered in proposing Sec. Sec.  201.210 and 
201.211 is the contrast in size and scale between livestock producers, 
swine production contract growers, and poultry growers and the packers, 
swine contractors, and live poultry dealers they supply. The disparity 
in size between large oligopsonistic buyers and atomistic sellers may 
lead to market power and asymmetric information. The 2012 Census of 
Agriculture reported 740,978 cattle and calf farms with 69.76 million 
head of cattle for an average of 94 head per operation. Ninety-one 
percent of these were family or individually-owned operations.\45\ The 
largest one percent of cattle farms sold about 51 percent of the cattle 
sold by all cattle farms.
---------------------------------------------------------------------------

    \45\ Census of Agriculture, 2012.
---------------------------------------------------------------------------

    There were 33,880 cattle feeding operations in 2012 that sold 25.47 
million head of fed cattle for an average of 752 head per feedlot. The 
607 largest feedlots sold about 75 percent of the fed cattle, and 
averaged 32,111 head sold. About 80 percent of feedlots were family or 
individually owned.\46\ As Table 5 shows, the four largest cattle 
packers processed about 85 percent, 25.47 million head, for an average 
of 5.41 million head per cattle packer. This means the average top four 
cattle packers had 57,574 times the volume of the average cattle farm, 
and 1,054 times the volume of the largest one percent of cattle farms. 
It also means the average top four cattle packers had 7,197 times the 
volume of the average feedlot, and

[[Page 92576]]

169 times the volume of the very largest feedlots.
---------------------------------------------------------------------------

    \46\ Ibid.
---------------------------------------------------------------------------

    The USDA, National Agricultural Statistics Service 2012 livestock 
slaughter summary reported that in 2012, 113.16 million head of hogs 
were commercially slaughtered in the United States.\47\ Table 5 shows 
that the top four hog packers processed about 64 percent of those hogs, 
which comes to an average of about 18.1 million head of hogs per top 
four packer. The 2012 Census of Agriculture reported 55,882 farms with 
hog and pig sales.\48\ About 83 percent of the farms were family or 
individually owned. Of the 55,882 farms with hog and pig sales, 47,336 
farms were independent growers raising hogs and pigs for themselves 
(sold an average of 1,931 head), 8,031 were swine production contract 
growers raising hogs and pigs for someone else (an average of 10,970 
head per swine production contract grower), and 515 were swine 
contractors (sold an average of 38,058 head per swine contractor).\49\
---------------------------------------------------------------------------

    \47\ Ibid.
    \48\ A pig is a generic term for a young hog.
    \49\ Agricultural Census, 2012.
---------------------------------------------------------------------------

    The National Chicken Council states that in 2016, approximately 35 
companies were involved in the business of raising, processing, and 
marketing chicken on a vertically integrated basis, while about 25,000 
family farmers had production contracts with those companies.\50\ That 
comes to about 714 family-growers per company. Collectively, the 
family-growers produced about 95 percent of the nearly 9 billion 
broilers produced in the United States in 2015. The other 5 percent 
were grown on company-owned farms. That means the average family-grower 
produced about 342,000 broilers. As Table 5 shows, the four largest 
poultry companies in the United States accounted for 51 percent of the 
broilers processed. That means the average volume processed by the four 
largest poultry companies was about 1.15 billion head, which was 3,357 
times the average family grower's volume.
---------------------------------------------------------------------------

    \50\ http://www.nationalchickencouncil.org/about-the-industry/statistics/broiler-chicken-industry-key-facts/.
---------------------------------------------------------------------------

    As the above discussion highlights, there are large size 
differences between livestock producers and meat packers. There are 
also large size differences between poultry growers and the live 
poultry dealers which they supply. These size differences may 
contribute to unequal bargaining power due to monopsony market power or 
oligopsony market power, or asymmetric information. The result is that 
the contracts bargained between the parties may have detrimental 
effects on livestock producers, swine production contract growers, and 
poultry growers due to the structural issues discussed above and may 
result in inefficiencies in the marketplace.
Hold-Up as a Potential Market Failure
    Integrators demand investment in fixed assets from the growers. One 
example is specific types of poultry houses and equipment the 
integrator may require the grower to utilize in their growing 
operations. These investments may improve efficiency by more than the 
cost of installation. Typically, the improved efficiency would accrue 
to both the integrator and the grower. The integrator has lower feed 
costs, and the grower performs better relative to other poultry growers 
in a settlement group. If the grower bears the entire cost of 
installation, then the grower should be further compensated for the 
feed conversion gains that accrue to the integrator. The risk is that 
after the assets are installed, the cost to the grower is ``sunk.'' 
This means that if the integrator reneges on paying compensation for 
the additional capital investments, and insists on maintaining the 
lower price, the grower will accept that lower price rather than 
receive nothing. This allows the integrator to get the benefit of the 
efficiency gains, at no expense to them, with the grower bearing all of 
the cost. This reneging is termed ``hold-up'' in the economic 
literature.\51\
---------------------------------------------------------------------------

    \51\ See for example, Benjamin Klein, Robert G. Crawford, and 
Armen A. Alchian, ``Vertical Integration, Appropriable Rents, and 
the Competitive Contracting Process,'' The Journal of Law and 
Economics 21, no. 2 (Oct., 1978): 297-326.
---------------------------------------------------------------------------

    Hold-up can have two consequences that result in a misallocation of 
resources. If the growers do not anticipate hold-up, then growers will 
spend too much on investments because the integrator who demands them 
is not incurring any cost. That is inefficient. If the grower does 
anticipate hold-up, they will act as if the integrator were going to 
renege even when they were not, resulting in too little investment and 
a loss of potential efficiency gains.
    Hold-up can be resolved with increased competition. If an 
integrator developed a reputation for reneging, and growers could go 
elsewhere, the initial integrator would be punished and disincentivized 
from reneging in the future. Unfortunately, in practice, many growers 
do not have the option of going elsewhere.
    Data shown above in Table 4 indicate that there are few integrators 
in these markets, and that growers have limited choice. Table 5, above, 
indicates the level of concentration in the livestock and poultry 
slaughtering industries and shows that integrators and livestock 
packers operate in concentrated markets.
    This rule would allow growers to file complaints against 
integrators that renege, giving some of the incentive benefit of 
competition, without compromising the efficiency of having a few large 
processors.
Contracting, Industry Structure, and Market Failure: Summary of the 
Need for Regulation
    There are benefits of contracting in the livestock and poultry 
industries, as well as structural issues that may result in unequal 
bargaining power and market failures. These structural issues and 
market failures will be mitigated by relieving plaintiffs from the 
requirement to demonstrate competitive injury. For instance, 
contracting parties can alleviate hold-up problems if they are able to 
write complete contracts, and are able to litigate to enforce the terms 
of those contracts when there is an attempt to engage in ex-post hold-
up. Because proving competitive injury is difficult and costly, 
removing that burden will facilitate the use of litigation by producers 
and growers to address violations of the Packers and Stockyards Act. If 
growers are able to seek legal remedies, then their contracts are 
easier to enforce. This will incentivize packers, swine contractors, 
and integrators to avoid exploitation of market power and asymmetric 
information, as well as behaviors that result in the market failure of 
hold-up. The result will be improved efficiency in the livestock and 
poultry markets.
    GIPSA has a clear role to ensure that market failures are mitigated 
so that livestock and poultry markets remain fair and competitive. 
Section 201.3(a) seeks to fulfill that role by promoting fairness and 
equity for livestock producers, swine production contract growers, and 
poultry growers.
Costs of the Regulations Proposed on June 22, 2010
    GIPSA issued a proposed rule on June 22, 2010, which included 
Sec. Sec.  201.3, 201.210, and 201.211. GIPSA received and considered 
thousands of comments before finalizing Sec.  201.3(a) and before 
proposing the current versions of Sec. Sec.  201.210, and 201.211. The 
following provisions were proposed in 2010 but are not in Sec.  201.3 
or currently proposed Sec. Sec.  201.210 and 201.211.
     Applicability to all stages of a live poultry dealer's 
poultry production, including pullets, laying hens, breeders, and 
broilers (Sec.  201.3(a)).

[[Page 92577]]

     Applicability to all swine production contracts, poultry 
growing arrangements and livestock production and marketing contracts, 
including formula and forward contracts (Sec.  201.3(b)).
     Requirement that packers, live poultry dealers, and swine 
contractors maintain records justifying differences in prices (Sec.  
201.210(a)(5)).
     Provision prohibiting packers from purchasing livestock 
from other packers (Sec.  201.212(c)).
     Requirement that packers offer the same terms to groups of 
small producers as offered to large producers when the group can 
collectively meet the same quantity commitments (Sec.  201.211(a)).
     Requirement that packers refrain from entering into 
exclusive agreements with livestock dealers (Sec.  201.212(b)).
     Requirements that packers and live poultry dealers submit 
sample contracts to GIPSA for posting to the public (Sec.  201.213).
    Although many thousands of the comments submitted contained general 
qualitative assessments of either the costs or benefits of the proposed 
rule, only two comments systematically described quantitative costs 
across the rule provisions. Comments from the National Meat Association 
(NMA) included cost estimates by Informa Economics (the Informa Study). 
The Informa Study projected costs of $880 million, $401 million, and 
$362 million for U.S. cattle and beef, hogs and pork, and poultry 
industries respectively.\52\ However, these cost estimates were for all 
of the 2010 proposed changes, many of which do not apply. The Informa 
Study estimated $133.3 million to be one-time direct costs resulting 
from rewriting contracts, additional record keeping, etc.\53\ The 
majority of the costs would be indirect costs. The Informa Study 
estimated $880.9 million in costs due to efficiency losses and $459.9 
million in costs due to reduced demand caused by a reduction in meat 
quality resulting from fewer AMAs.
---------------------------------------------------------------------------

    \52\ Informa Economics, Inc. ``An Estimate of the Economic 
Impact of GIPSA's Proposed Rules,'' prepared for the National Meat 
Association, 2010, Table 10, Page 53.
    \53\ Ibid. Page 53.
---------------------------------------------------------------------------

    Comments from the National Chicken Council (NCC) included cost 
estimates prepared by Dr. Thomas E. Elam, President, FarmEcon LLC (the 
Elam Study).\54\ The Elam Study estimated that the entire 2010 proposed 
rule would cost the chicken industry $84 million in the first year 
increasing to $337 million in the fifth year, with a total cost of 
$1.03 billion over the first five years.\55\ The Elam Study identified 
$6 million as one-time administrative costs. Most of the costs would be 
indirect costs resulting from efficiency losses.\56\ More than half of 
the costs would be due to a reduced rate of improvement in feed 
efficiency. Again, these cost estimates were for all of the 2010 
proposed changes, many of which do not apply.
---------------------------------------------------------------------------

    \54\ See Elam, Dr. Thomas E. ``Proposed GIPSA Rules Relating to 
the Chicken Industry: Economic Impact.'' FarmEcon LLC, 2010.
    \55\ Ibid. Page 24
    \56\ Ibid. Page 24.
---------------------------------------------------------------------------

    The Informa Study estimated that the proposed provision requiring 
packers to refrain from entering into exclusive agreements with 
livestock dealers would cost livestock auctions as much as $85.5 
million.\57\ Because GIPSA has no current plans to propose the 
``exclusive agreements'' rule, those costs no longer apply. The Informa 
Study did not directly specify how much the estimates in the study 
attributed to each of the other provisions, but GIPSA expects that 
their omission will substantially reduce the cost of Sec.  201.3(a).
---------------------------------------------------------------------------

    \57\ Ibid. Page 49.
---------------------------------------------------------------------------

    Estimates of the costs in the Informa Study and the Elam Study were 
largely due to projections that packers, swine contractors, and live 
poultry dealers, would alter business practices in reaction to the 
proposed rule. For example, the Informa Study projected that packers 
would reduce the number and types of AMAs to avoid potential 
litigation,\58\ and the Elam Study expected live poultry dealers to 
evaluate each load of feed delivered to growers to avoid 
litigation.\59\
---------------------------------------------------------------------------

    \58\ Informa, page 30.
    \59\ Elam, page 18.
---------------------------------------------------------------------------

    The estimates from the Informa Study and the Elam Study may 
overstate costs because the studies relied on interviews of packers, 
swine contractors, live poultry dealers, and other stakeholders for 
much of the basis for the estimates of the willingness of packers, 
swine contractors, and live poultry dealers to alter their business 
practices. Moreover, neither study considered benefits from the 
proposed rule.
    The Informa Study projected that the regulations proposed in 2010 
would cause beef and pork packers to limit their involvement in 
vertical arrangements, and without those arrangements, they would not 
be able to produce the branded products they currently offer. The 
Informa Study projected that, as a result, beef and pork markets would 
lose $460 million, which is about half of the value added from branded 
products.\60\
---------------------------------------------------------------------------

    \60\ Informa, pages 51 and 52.
---------------------------------------------------------------------------

    GIPSA does not expect that the current Sec.  201.3(a) would cause 
beef and pork markets to abandon half of the value added from branded 
products. Current Sec.  201.3(a) does not prevent packers from offering 
quality incentives to hog or cattle feeders, and any vertical 
coordination among feeders and producers would be outside of GIPSA's 
jurisdiction.
    Given the differences from the rule proposed in 2010, the estimates 
from the Elam Study likely overstated the costs of compliance to the 
poultry industry with current Sec.  201.3(a) by at least $115 million 
over five years. The Informa Study estimates would overstate costs of 
compliance to the cattle, hog, and poultry industries with current 
Sec.  201.3(a) by at least $500 million. If packers, swine contractors, 
and live poultry dealers overstated their willingness to alter their 
business practices, then the estimates could be overstated that much 
more.
Cost-Benefit Analysis of Sec.  201.3(a)
Regulatory Alternatives Considered
    Executive Order 12866 requires an assessment of costs and benefits 
of potentially effective and reasonably feasible alternatives to the 
planned regulation and an explanation of why the planned regulatory 
action is preferable to the potential alternatives.\61\ GIPSA 
considered three regulatory alternatives. The first alternative that 
GIPSA considered is the baseline to maintain the status quo and not 
finalize Sec.  201.3(a). The second alternative that GIPSA considered 
is to issue Sec.  201.3(a) as an interim final regulation. This is 
GIPSA's preferred alternative as will be explained below. The third 
alternative that GIPSA considered is issuing Sec.  201.3(a) as an 
interim final regulation, but exempting small businesses, as defined by 
the Small Business Administration, from having to comply with the 
regulation.
---------------------------------------------------------------------------

    \61\ See Section 6(a)(3)(C) of Executive Order 12866.
---------------------------------------------------------------------------

Regulatory Option 1: Status Quo
    If Sec.  201.3(a) is never finalized, there are no marginal costs 
and marginal benefits as industry participants will not alter their 
conduct. From a cost standpoint, this is the least cost alternative 
compared to the other two alternatives. This alternative also has no 
marginal benefits. Since there are no changes from the status quo under 
this regulatory alternative, it will serve as the baseline against 
which to measure the other two alternatives.

[[Page 92578]]

Regulatory Alternative 2: The Preferred Alternative
    Section 201.3(a) states that conduct or action can be found to 
violate sections 202(a) and/or 202(b) of the P&S Act without a finding 
of harm or likely harm to competition. Given the applicability of the 
regulation to the entire livestock and poultry industries, it is 
difficult to predict how the industries will respond. Therefore, GIPSA 
believes that assigning a range to the expected costs of the regulation 
is appropriate.
    At the lower boundary of the cost spectrum, GIPSA considers the 
scenario where the only costs are increased litigation costs and there 
are no adjustments by the livestock and poultry industries to reduce 
their use of AMAs or incentive pay systems, such as poultry grower 
ranking systems, and there are no changes to existing marketing or 
production contracts. For the upper boundary of the cost spectrum, 
GIPSA considers the scenario in which the livestock and poultry 
industries adjust their use of AMAs and incentive pay systems and makes 
systematic changes in its marketing and production contracts to reduce 
the threat of litigation.
A. Regulatory Alternative 2: Lower Boundary of Cost Spectrum--
Litigation Costs of Preferred Alternative
    GIPSA modeled the litigation costs by estimating the total cost of 
litigating a case filed under the jurisdiction of the P&S Act. The main 
costs are attorney fees to litigate a case in a court of law. Limited 
empirical data on actual historical litigation costs required GIPSA to 
use a cost engineering approach to estimate litigation costs. In 
considering the costs of the 2010 proposed rule, GIPSA, based on its 
expertise, assumed a cost of $3.5 million to litigate a case. GIPSA 
uses the same starting point here. The cost of litigating a case 
includes the costs to all parties including the respondent and the USDA 
in a case brought by the USDA and the costs of the plaintiff and the 
defendant in the case of private litigation.
    GIPSA then examined the actual number of cases decided under the 
P&S Act from 1926 to 2014. The listing of court decisions and the court 
in which the decision was reached came from the National Agricultural 
Law Center at the University of Arkansas.\62\ GIPSA then reviewed each 
case and classified it as either competition, financial, or trade 
practice cases. This is an internal classification system corresponding 
to the types of violations GIPSA investigates.
---------------------------------------------------------------------------

    \62\ http://nationalaglawcenter.org/aglaw-reporter/case-law-index/packers-and-stockyards. We note that this list is not 
exhaustive, but it is extensive.
---------------------------------------------------------------------------

    All of the cases were assigned a specific attorney fee based on a 
random sample from a normal distribution ranging between $250 thousand 
and $3.5 million for trade practice cases, $250 thousand to $3 million 
for financial cases, and $1.5 million to $5 million for competition 
cases. These ranges are based on GIPSA's expertise and the complexity 
of each type of case, with competition being the most complex and 
therefore the most costly to litigate. This expertise comes from 
GIPSA's experience litigating each type of case and monitoring private 
litigation under the P&S Act. GIPSA estimated the cost of litigating 
each case from 1926 to 2014 using the cost ranges outlined above.
    GIPSA scaled the initial cost up or down based on the court making 
the decision and based on GIPSA's assumption that Supreme Court cases 
are more expensive than District court cases, which are more expensive 
than state court cases. For Supreme Court cases, GIPSA scaled up the 
cost by a factor of three. For District court cases, GIPSA left the 
costs unchanged except for the sole case litigated in the United States 
District Court for the District of Columbia, which GIPSA scaled up by a 
factor of 1.1. GIPSA scaled state courts down by a factor of 0.7.
    After estimating the cost of each case, by case type, GIPSA 
averaged all cases decided each year to obtain an estimated annual 
average cost of litigation. GIPSA then conducted a Monte Carlo 
simulation by sampling from a normal distribution of estimated average 
annual litigation costs for each type of case to arrive at the final 
estimated annual average cost of litigating cases filed under the P&S 
Act.\63\
---------------------------------------------------------------------------

    \63\ Monte Carlo simulation is a statistical technique that 
relies on repeated random sampling from a distribution to obtain 
numerical results.
---------------------------------------------------------------------------

    GIPSA recognizes the uncertainty in estimating litigation costs and 
conducted sensitivity analysis using a Monte Carlo simulation on the 
estimated average annual litigation costs. GIPSA used a normal 
distribution of estimated litigation costs and calculated estimated 
litigation costs at the 2.5th percentile (lower percentile) of the 
distribution, the mean (average), and the 97.5th percentile (upper 
percentile).
    GIPSA then estimated a linear trend line through the data using the 
Ordinary Least Squares (OLS) linear regression technique and used the 
trend line to project the litigation costs for 2015-2017.\64\ These are 
baseline litigation costs that GIPSA expects to occur without the 
regulation. The table below shows the estimated and projected baseline 
litigation costs for 2007-2017.\65\
---------------------------------------------------------------------------

    \64\ Ordinary least squares regression technique is a method for 
estimating the unknown parameters using an established statistical 
model based on existing data observations.
    \65\ The baseline litigation costs are those costs GIPSA expects 
to occur without implementation of Sec.  201.3(a).

                  Table 6--Estimated and Projected Baseline Litigation Costs for 2007-2017 \66\
----------------------------------------------------------------------------------------------------------------
                                                         Lower                           Upper
                       Year                         percentile  ($    Average  ($   percentile  ($
                                                       millions)       millions)       millions)
--------------------------------------------------------------------------------------------------
2007..............................................            4.98            8.88           12.77
2008..............................................            2.16            5.12            8.08
2009..............................................            8.45           13.00           17.46
2010..............................................            6.82           11.25           15.60
2011..............................................           10.52           15.28           20.02
2012..............................................            6.49           10.10           13.81
2013..............................................            1.94            4.14            6.42
2014..............................................            3.56            6.74           10.03
2015..............................................            4.32            8.13           12.10
2016..............................................            4.45            8.28           12.31
2017..............................................            4.58            8.42           12.52
----------------------------------------------------------------------------------------------------------------


[[Page 92579]]

    GIPSA then reviewed the complete history of all investigations 
conducted by its Packers and Stockyards Program since 2009 and 
separated out the investigations involving alleged violations of 
sections 202(a) and 202(b) of the P&S Act for cattle, hogs, and poultry 
because Sec.  201.3(a) only applies to alleged violations of sections 
202(a) and 202(b). The GIPSA investigation data are more robust, with 
more observations than the case data. There were never many cases in 
any given year. In addition, the data since 2009 are better predictors 
of the next ten years than cases that took place as far back as 1926.
---------------------------------------------------------------------------

    \66\ The litigation costs for 2007-2014 are estimated using 
Monte Carlo simulation at the lower percentile, the average, and the 
upper percentile and 2015-2017 are projected using the estimated 
trend lines using OLS and historical estimates. The cost of each 
case is measured using 2016 dollars.
---------------------------------------------------------------------------

    Based on the history of investigations, GIPSA then allocated all of 
the projected baseline litigation costs for 2017 into section 202(a) 
and 202(b) violations for each species at the lower percentile, the 
average, and the upper percentile. These allocations appear in the 
tables below.

        Table 7--Allocation of Sec.   201.3(a) Baseline Litigation Costs for 2017 at the Lower Percentile
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            1.00            0.65            2.01            3.66
202(b)..........................................            0.10            0.11            0.71            0.92
                                                 ---------------------------------------------------------------
    Total.......................................            1.10            0.76            2.72            4.58
----------------------------------------------------------------------------------------------------------------


            Table 8--Allocation of Sec.   201.3(a) Baseline Litigation Costs for 2017 at the Average
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            1.84            1.20            3.70            6.73
202(b)..........................................            0.19            0.21            1.30            1.69
                                                 ---------------------------------------------------------------
    Total.......................................            2.02            1.41            4.99            8.42
----------------------------------------------------------------------------------------------------------------


        Table 9--Allocation of Sec.   201.3(a) Baseline Litigation Costs for 2017 at the Upper Percentile
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            2.73            1.78            5.50           10.00
202(b)..........................................            0.28            0.31            1.93            2.52
                                                 ---------------------------------------------------------------
    Total.......................................            3.00            2.09            7.42           12.52
----------------------------------------------------------------------------------------------------------------

    These allocations assume that all projected baseline litigation 
costs for 2017 will come only from section 202(a) and 202(b) 
violations. GIPSA then estimated the additional litigation costs the 
first full year the regulation is in place.
    In order to estimate the additional expected litigation costs in 
2017 assuming Sec.  201.3(a) becomes effective in early 2017, GIPSA 
again utilized the complete history of all investigations conducted by 
its Packers and Stockyards Program since 2009. GIPSA based the 
additional litigation costs on the difference between the number of 
complaints received in 2015 on alleged conduct that may violate 
sections 202(a) and 202(b), by species, and the highest number of 
complaints GIPSA received in any year since 2009. By 2015, court 
decisions had established the requirement to demonstrate harm to 
competition, which likely resulted in fewer complaints of Section 
202(a) and 202(b) violations, particularly in the poultry industry, 
than in previous years when this requirement was not fully realized by 
industry participants. GIPSA expects Sec.  201.3(a) will result in 
additional new complaints filed with GIPSA that will be at the levels 
experienced between 2009 and 2015 before the requirement of harm to 
competition was fully realized. GIPSA tracks the number of complaints 
received through a complaint tracking system initiated in 2009. Thus, 
this difference, by species, is the increase in complaints GIPSA 
expects when the regulations are finalized. GIPSA then used these 
differences as scaling factors to estimate the litigation that GIPSA 
expects to occur in 2017, the first full year that Sec.  201.3(a) 
becomes effective. The scaling factors appear in the table below:

                          Table 10--Scaling Factors for Litigation From Sec.   201.3(a)
----------------------------------------------------------------------------------------------------------------
                         P&S Act section                              Cattle            Hog           Poultry
----------------------------------------------------------------------------------------------------------------
202(a)..........................................................            2.30            1.40            2.15
202(b)..........................................................            2.30            1.20            2.15
----------------------------------------------------------------------------------------------------------------


[[Page 92580]]

    The scaling factors run from 1.20 for hogs to 2.30 for cattle.
    To finalize the estimated increase in litigation costs, GIPSA 
multiplied the scaling factors in the above table by the projected 2017 
baseline litigation costs at the lower percentile, the average, and the 
upper percentile to arrive at the expected litigation costs in 2017. 
GIPSA then subtracted out the projected baseline litigation costs to 
arrive at the estimated additional litigation costs that GIPSA expects 
to occur assuming Sec.  201.3(a) become effective in early 2017. These 
estimated litigation costs appear in the following tables.

              Table 11--Projected Sec.   201.3(a) Litigation Costs for 2017 at the Lower Percentile
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            1.30            0.26            2.31            3.87
202(b)..........................................            0.13            0.02            0.81            0.97
                                                 ---------------------------------------------------------------
    Total.......................................            1.43            0.28            3.12            4.84
----------------------------------------------------------------------------------------------------------------


                  Table 12--Projected Sec.   201.3(a) Litigation Costs for 2017 at the Average
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            2.39            0.48            4.25            7.12
202(b)..........................................            0.24            0.04            1.49            1.77
                                                 ---------------------------------------------------------------
    Total.......................................            2.63            0.52            5.74            8.89
----------------------------------------------------------------------------------------------------------------


              Table 13--Projected Sec.   201.3(a) Litigation Costs for 2017 at the Upper Percentile
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            3.55            0.71            6.32           10.58
202(b)..........................................            0.36            0.06            2.22            2.64
                                                 ---------------------------------------------------------------
    Total.......................................            3.91            0.77            8.54           13.22
----------------------------------------------------------------------------------------------------------------

    GIPSA expects Sec.  201.3(a) to result in an additional $4.84 
million in litigation in 2017 at the lower percentile, $8.89 million in 
litigation in 2017 at the average, and $13.22 million in litigation in 
2017 at the upper percentile. GIPSA also expects the majority of 
additional litigation to come from the poultry industry based on 
investigations GIPSA conducted from 2009 to 2015, many of which were 
based on industry complaints.
    As discussed above, GIPSA considers the lower boundary of costs 
from Sec.  201.3(a) to be increased litigation costs with no 
adjustments by the livestock and poultry industries to reduce their use 
of AMAs or incentive pay systems and no changes to existing marketing 
or production contracts. GIPSA also recognizes the uncertainty in 
estimating litigation costs and conducted a sensitivity analysis of 
litigation costs at the lower percentile, the average percentile, and 
the upper percentile. The sensitivity analysis shows that litigation 
may vary by as much as $8.38 million (upper percentile minus lower 
percentile). GIPSA believes the average litigation costs is the best 
available estimate of litigation costs and uses it as the lower 
boundary for the estimated litigation costs of Sec.  201.3(a). The 
lower boundary cost estimates appear in the table below.

                 Table 14--Lower Boundary Projected Sec.   201.3(a) Costs--Preferred Alternative
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                 P&S Act section                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
202(a)..........................................            2.39            0.48            4.25            7.12
202(b)..........................................            0.24            0.04            1.49            1.77
                                                 ---------------------------------------------------------------
    Total.......................................            2.63            0.52            5.74            8.89
----------------------------------------------------------------------------------------------------------------

    GIPSA estimates that Sec.  201.3(a) will result in an additional 
$8.89 million in additional litigation in the livestock and poultry 
industries with $2.63 million in litigation in the cattle industry, 
$0.52 million in the hog industry, and $5.74 million in the poultry 
industry in the first full year Sec.  201.3(a) would be in place.
B. Regulatory Alternative 2: Lower Boundary--Ten-Year Total Costs of 
the Preferred Alternative
    To arrive at the estimated ten-year costs of Sec.  201.3(a), GIPSA 
expects the litigation costs to be constant for the first five years 
while courts are setting precedents for the interpretation of Sec.  
201.3(a). GIPSA expects that case law with respect to the regulation 
will be settled after five years and by then, industry participants 
will know how GIPSA will enforce the regulation and how courts will 
interpret the regulation.

[[Page 92581]]

The effect of courts establishing precedents is that litigation costs 
will decline after five years as the livestock and poultry industries 
understand how the courts interpret the regulation.
    To arrive at the estimated ten-year costs of Sec.  201.3(a), GIPSA 
estimates that litigation costs for the first five years will occur at 
the same rate and at the same cost as in 2017. In the second five 
years, GIPSA estimates that litigation costs will decrease each year 
and return to the baseline in the sixth year after the courts have 
established precedents. GIPSA estimates this decrease in litigation 
costs to the baseline to be linear with the same decrease in costs each 
year. The total ten-year costs of Sec.  201.3(a) at the lower boundary 
appears in the table below.

                       Table 15--Lower Boundary of Ten-Year Total Costs of Sec.   201.3(a)
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                      Year                           millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
2017............................................            2.63            0.52            5.74            8.89
2018............................................            2.63            0.52            5.74            8.89
2019............................................            2.63            0.52            5.74            8.89
2020............................................            2.63            0.52            5.74            8.89
2021............................................            2.63            0.52            5.74            8.89
2022............................................            2.19            0.43            4.79            7.41
2023............................................            1.75            0.35            3.83            5.93
2024............................................            1.31            0.26            2.87            4.44
2025............................................            0.88            0.17            1.91            2.96
2026............................................            0.44            0.09            0.96            1.48
                                                 ---------------------------------------------------------------
    Totals......................................           19.70            3.90           43.07           66.67
----------------------------------------------------------------------------------------------------------------

    Based on the analysis, GIPSA expects the lower boundary of the ten-
year total costs of Sec.  201.3(a) to be $66.67 million.
C. Regulatory Alternative 2: Lower Boundary--Net Present Value of Ten-
Year Total Costs of the Preferred Alternative
    The lower boundary ten-year total costs of Sec.  201.3(a) in the 
table above show that the costs are constant in the first five years 
and then gradually decrease over the next five years. Costs to be 
incurred in the future are less expensive than the same costs to be 
incurred today. This is because the money that will be used to pay the 
costs in the future can be invested today and earn interest until the 
time period in which the cost is incurred. After the cost has been 
incurred, the interest earned will still be available.
    To account for the time value of money, the costs of the regulation 
to be incurred in the future is discounted back to today's dollars 
using a discount rate. The sum of all costs discounted back to the 
present is called the net present value (NPV) of total costs. GIPSA 
relied on both a three percent and seven percent discount rate as 
discussed in Circular A-4.\67\ GIPSA measured all costs using constant 
2016 dollars.
---------------------------------------------------------------------------

    \67\ https://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf. Accessed on September 19, 2016.
---------------------------------------------------------------------------

    GIPSA calculated the NPV of the ten-year total costs of the 
regulation using both a three percent and seven percent discount rate 
and the NPVs appear in the following table.

     Table 16--NPV of Lower Boundary of Ten-Year Total Cost of Sec.
                     201.3(a)--Preferred Alternative
------------------------------------------------------------------------
                                                             Preferred
                      Discount rate                       alternative ($
                                                             millions)
------------------------------------------------------------------------
3 Percent...............................................           58.62
7 Percent...............................................           50.03
------------------------------------------------------------------------

    GIPSA expects the NPV of the lower boundary of the ten-year total 
costs of Sec.  201.3(a) to be $58.62 million at a three percent 
discount rate and $50.03 million at a seven percent discount rate.
D. Regulatory Alternative 2: Lower Boundary--Annualized NPV of Ten-Year 
Total Costs of the Preferred Alternative
    GIPSA then annualized the NPV of the ten-year total costs (referred 
to as annualized costs) of Sec.  201.3(a) at the lower boundary using 
both a three percent and seven percent discount rate as required by 
Circular A-4 and the results appear in the following table.\68\
---------------------------------------------------------------------------

    \68\ Ibid.

     Table 17--Annualized Costs of Sec.   201.3(a)--Preferred Option
------------------------------------------------------------------------
                                                             Preferred
                      Discount rate                       alternative ($
                                                             millions)
------------------------------------------------------------------------
3 Percent...............................................            6.87
7 Percent...............................................            7.12
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec.  201.3(a) at the lower 
boundary to be $6.87 million at a three percent discount rate and $7.12 
million at a seven percent discount rate.
E. Regulatory Alternative 2: Upper Boundary of Cost Spectrum--Preferred 
Alternative
    As discussed above, the upper boundary of the cost spectrum occurs 
if the cattle, hog, and poultry industries adjust their use of AMAs and 
incentive pay systems and make systematic changes in their marketing 
and production contracts to reduce the threat of litigation. For the 
upper boundary cost estimate, GIPSA relied on the Informa Study and 
Elam Study. The Informa Study was prepared for the NMA and the Elam 
Study was prepared for the NCC. Both of these groups were opposed to 
the rule proposed on June 22, 2010 and GIPSA considers their studies to 
be upper boundary scenarios for meat and livestock industries and 
poultry industry costs.
    GIPSA reviewed the Informa Study and the Elam Study and compared 
the provisions in the multiple proposed regulations in the June 22, 
2010 rule against Sec.  201.3(a). The Informa Study estimated both 
direct and indirect costs of the 2010 proposed rule. The Informa Study 
direct costs are estimates of actual costs of complying with all of the 
regulations proposed in 2010, such as new computer software and 
additional staff. The Informa Study estimated both direct one-time 
costs and on-going direct costs that would be incurred by the livestock 
industry each year. The Informa Study also estimated indirect costs to 
capture livestock and poultry industry adjustments to the 2010

[[Page 92582]]

regulations. The Informa Study also included litigation costs.
    The sources of indirect costs that the Informa Study estimated for 
the cattle industry are a reduction in production efficiencies due to a 
reduction in the use of AMAs and the corresponding reduction in 
premiums paid in branded beef programs and a reduction in beef quality. 
The RTI Study also found that hypothetical reductions in AMAs would 
reduce beef and cattle supplies, reduce the quality of beef, and 
increase retail and wholesale beef prices.\69\
---------------------------------------------------------------------------

    \69\ RTI International, 2007, GIPSA Livestock and Meat Marketing 
Study. Prepared for Grain Inspection, Packers and Stockyard 
Administration.
---------------------------------------------------------------------------

    For the hog industry, the Informa Study estimated the indirect 
costs as the reduction in operational efficiency from operating 
slaughter plants at less than full optimal utilization as well as 
revenue losses due to reductions in quality from reductions in premiums 
paid for higher quality hogs procured under AMAs.
    For the poultry industry, the Informa Study estimated indirect 
costs resulting from a slowdown in the adoption of new technology that 
increases efficiency as integrators are unwilling to provide monetary 
incentives for growers to invest in new technology due to the threat of 
litigation for unfair, unjustly discriminatory, or deceptive payment 
practices.
    The Informa Study recognized that the economic costs of the 2010 
rule would take time to materialize. The Informa Study estimated that 
only the direct, one-time costs would occur shortly after 
implementation of the regulations in the 2010 rule and the more 
significant impacts, such as declining efficiency and quality 
degradation, would happen more slowly and might not reach the full 
impact until three or four years after the rule became effective.\70\ 
The Informa Study further recognized that companies would find ways to 
adapt to the provisions of the regulation in the rule and the impact of 
the rule would be lessened over time.\71\ The following table 
summarizes the full-impact of the Informa Study cost estimates on the 
impact of the June 22, 2010 proposed rule.
---------------------------------------------------------------------------

    \70\ Informa Economics, Inc. ``An Estimate of the Economic 
Impact of GIPSA's Proposed Rules,'' prepared for the National Meat 
Association, 2010, Page 66.
    \71\ Ibid, Page 67.
    \72\ Ibid, Tables 7, 8, and 9.

                        Table 18--Total Informa Study Costs for the Full-Impact Year \72\
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hogs ($       Poultry ($       Total ($
                                                     millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
One-Time Direct Costs...........................            38.7            68.7            26.0           133.4
Ongoing Direct Costs............................            61.5            73.8            33.4           168.7
Cost Increase Due to Efficiency Loss............           401.9           176.7           302.2           880.8
Revenue Lost Due to Quality/Demand Impact.......           377.7            82.2             0.0           459.9
                                                 ---------------------------------------------------------------
    Total Informa Costs.........................           879.8           401.4           361.6         1,642.8
----------------------------------------------------------------------------------------------------------------

    At the full impact level, the Informa Study estimated the highest 
cost to be borne by the cattle industry at almost $880 million, 
followed by the hog and poultry industries. The Informa Study estimated 
that the total costs of the regulations proposed in 2010 could be as 
high as $1.64 billion and that this cost would not be fully borne until 
three or four years after implementation of the regulations.
    The Elam Study estimated a similar impact on the poultry industry 
as the Informa Study. The Elam Study estimated that the costs of the 
2010 proposed rule would increase over time and would cost the chicken 
industry $200.64 million in the third year after implementation, 
$266.94 in the fourth year, and $336.67 million in the fifth year, with 
a total cost of $1.03 billion over the first five years.\73\ The Elam 
Study estimated $6 million as one-time administrative costs from re-
drafting poultry grower contracts, additional record keeping, and 
submission of contracts to GIPSA.\74\ The remainder of the costs 
estimated in the Elam Study were indirect costs resulting from 
efficiency losses and costs of testing and evaluating feed.
---------------------------------------------------------------------------

    \73\ Elam, Dr. Thomas E. ``Proposed GIPSA Rules Relating to the 
Chicken Industry: Economic Impact.'' FarmEcon LLC, 2010, Table on 
Page 25.
    \74\ Ibid. Page 21.
---------------------------------------------------------------------------

    GIPSA expects the livestock and poultry industries to adapt to 
Sec.  201.3(a) after a period of five years when the courts have 
presumably settled the case law and the livestock and poultry 
industries know how courts will interpret the regulation. This will 
cause the costs of Sec.  201.3(a) to decline after a period of five 
years. GIPSA expects the livestock and poultry industries to adjust 
their business practices in a way to maximize profits and lessen the 
impact of the regulation over time.
    GIPSA also compared the estimated impact on the poultry industry in 
the first five years as estimated in the Informa Study and the Elam 
Study. In the first four years, the poultry costs estimated in the 
Informa Study are higher than those estimated in the Elam Study. The 
Elam study has higher cost estimates in year five. Because the Informa 
Study cost estimates are higher than the Elam Study cost estimates and 
the Informa Study cost estimates decline in the later years as GIPSA 
expects, GIPSA relies on the Informa Study cost estimates to estimate 
the upper boundary of the costs of Sec.  201.3(a).
1. Regulatory Alternative 2: Upper Boundary-Informa Study Estimates--
Adjustment 1
    In order to arrive at the upper boundary estimate of the costs of 
Sec.  201.3(a), GIPSA made several downward adjustments to the Informa 
Study estimates presented in Table 18 above. The first adjustment is to 
reduce the Informa Study cost estimates by 25 percent. The Informa 
Study implicitly asserted that 75 percent of the total costs of the 
2010 rule were caused by relieving the plaintiff of the burden of 
proving competitive injury.\75\ Thus, the Informa Study implicitly 
asserted that provisions in regulations in the 2010 proposed rule other 
than Sec.  201.3(a) are responsible for 25 percent of the total costs. 
Because GIPSA is only concerned with costs attributable to Sec.  
201.3(a), GIPSA is reducing the Informa Study cost estimates by 25 
percent.
---------------------------------------------------------------------------

    \75\ Informa Economics, Inc. ``An Estimate of the Economic 
Impact of GIPSA's Proposed Rules,'' prepared for the National Meat 
Association, 2010, Page 71.

---------------------------------------------------------------------------

[[Page 92583]]

2. Regulatory Alternative 2: Upper Boundary-Informa Study Estimates--
Adjustment 2
    The second downward adjustment that GIPSA made is to scale the 
Informa Study's estimates according to the timing of the economic 
impact the Informa Study estimated. The Informa Study expected the 
costs to increase in the first three years, peak in years three or 
four, and then decline through year ten. In order to simulate the costs 
that the Informa Study assigned to each year, GIPSA adjusted the costs 
in the full impact year in Table 18 above by the percentages listed in 
Table 19.\\
---------------------------------------------------------------------------

    \76\ The Informa Study estimates are for years one through ten 
beginning with the first year of the implementation of the rule and 
are not specific to any one year. GIPSA uses 2017 as year one and 
2026 as year ten. The Informa Study stated that in particular, the 
decline in beef and pork quality and subsequent damage to consumer 
demand will take time to materialize, while the efficiency losses in 
poultry would likely happen sooner, but will still be delayed. This 
is presumably because the breeding cycle for hogs and especially for 
cattle is longer than that for poultry.

           Table 19--Impact Level of Informa Study Costs \76\
------------------------------------------------------------------------
               Year                 Cattle (%)    Hog (%)    Poultry (%)
------------------------------------------------------------------------
2017.............................           40           29           49
2018.............................           69           59           79
2019.............................          100           79          100
2020.............................          100          100          100
2021.............................          100           96           81
2022.............................           91           75           60
2023.............................           75           54           30
2024.............................           51           53            9
2025.............................           38           29            9
2026.............................           38           29            9
------------------------------------------------------------------------

    GIPSA then weighted the Informa Study's full-impact cost estimate 
for each year and each industry by the impact level from the table 
above.
3. Regulatory Alternative 2: Upper Boundary-Informa Study Estimates--
Adjustment 3
    The final downward adjustment GIPSA made is based on two factors. 
The first factor is that GIPSA expects the language in Sec.  201.3(a) 
to result in limited industry adjustments and a continued role for the 
courts to interpret when a showing of harm or likelihood of harm to 
competition is necessary in order to prove a violation of section 
202(a) or (b) of the P&S Act. The second factor is the fact that the 
courts have historically not required a showing of harm or likelihood 
of harm to competition in all livestock and poultry cases and GIPSA 
expects that trend to continue. GIPSA discusses the factors in turn and 
then estimates the third and final adjustment to the Informa Study 
estimates.
    The first factor is that Sec.  201.3(a) states that a finding that 
the challenged conduct or action adversely affects or is likely to 
adversely affect competition is not necessary in all cases. However, 
Sec.  201.3(a) does not provide any guidance regarding the types of 
conduct or action where a finding of harm or likelihood of harm would 
or would not be necessary to prove a violation of section 202(a) or (b) 
of the P&S Act.\77\ It is possible that without the guidance in the 
proposed regulations, courts will continue to exercise judicial 
discretion in determining when a finding of harm or likelihood of harm 
to competition is necessary in order to prove a violation of sections 
202(a) and/or (b). However, this rule will provide the longstanding 
position of the Department of Agriculture for the courts to consider. 
Because some of the U.S. Courts of Appeals in areas of heavy 
agricultural production have ruled that GIPSA must demonstrate 
competitive injury or the likelihood of competitive injury in order to 
prove that certain conduct or action violates section 202(a) and (b), 
GIPSA anticipates that the federal district courts in those circuits 
will continue to apply this binding case law.
---------------------------------------------------------------------------

    \77\ Proposed regulations 201.210 and 201.211 provide conduct 
and criteria for 202(a) and 202(b) violations.
---------------------------------------------------------------------------

    GIPSA acknowledges that final Sec.  201.3(a) may motivate some 
private plaintiffs to file new lawsuits under sections 202(a) and/or 
202(b) to test its parameters in an attempt to move courts to find in 
selected cases that harm or likely harm to competition need not be 
proven. If a U.S. Court of Appeals upholds a district court ruling that 
competitive harm or likelihood of competitive harm must be demonstrated 
in order to prove a violation of section 202(a) or (b), that result 
would not involve any change from the status quo of section 202(a) and 
202(b) litigation. Packers, swine contractors, and live poultry dealers 
would have no reason to adjust their contracts or business practices 
with the result of few additional indirect costs being borne by the 
livestock and poultry industries. Similarly, plaintiffs would then need 
to consider the high costs (in terms of discovery of large amounts of 
data and the hiring of economic and statistical experts) to proceed to 
trial and may opt not to proceed with additional litigation.\78\
---------------------------------------------------------------------------

    \78\ In the Been v. O.K. Indus., Inc. litigation, the 
plaintiffs' economic expert billed for more than 3,000 hours spent 
on economic analysis of data, building a monopsony case in 
accordance with the Tenth Circuit's 2007 opinion, writing reports, 
consulting with attorneys, and testifying at depositions and during 
the jury trial. The defendant's two economic experts presumably 
billed for a similarly significant amount of time.
---------------------------------------------------------------------------

    GIPSA expects the effects of Sec.  201.3(a) on livestock and 
poultry industry participants to be mixed. A small number of livestock 
producers, swine production contract growers, and poultry growers may 
seek judicial enforcement of their rights under the P&S Act without 
showing harm or likely harm to competition. However, due to the 
uncertain outcome of litigation under sections 202(a) and/or 202 (b), 
GIPSA expects packers, swine contractors, and live poultry dealers will 
likely take a ``wait and see'' approach prior to making any significant 
changes in their business models, marketing arrangements, or other 
practices. Concerned with net profit and reports to stockholders or 
owners, such firms will rationally forego any large changes in their 
operations until it is clear that such changes are legally required. If 
such changes are not required, due to status quo rulings by courts 
requiring proof of competitive

[[Page 92584]]

injury or the likelihood of competitive injury, as GIPSA anticipates, 
then GIPSA expects that few changes will be made as a result of Sec.  
201.3(a).
    GIPSA expects the status quo enforcement outcome of Sec.  201.3(a) 
discussed above to be most likely in the cattle and hog industries. 
GIPSA has enforced the P&S Act and regulations against packers without 
proving harm or likelihood of harm to competition for decades, and the 
courts have upheld successful enforcement actions. It is primarily in 
the poultry industry that, the courts have declined to enforce, 
sections 202(a) and (b) of the P&S Act and regulations without a 
finding of harm or likelihood of harm to competition.
    Therefore, due to the likelihood of status quo rulings, GIPSA 
estimates that the upper boundary cost estimate of the overall impact 
of Sec.  201.3(a) on the cattle and hog industries will be considerably 
less than the Informa Study estimates after applying the first two 
adjustments.
    The second factor is the recent outcome of cases decided under the 
P&S Act since 2000 and whether courts have required demonstration of 
harm or likely harm to competition. GIPSA examined the actual number of 
cases decided under the P&S Act from 2000 to 2014. This is the same 
listing of cases as in the estimation of litigation costs presented 
earlier, except that GIPSA only considered cases decided after 2000 to 
reflect the most current decisions reached by the courts. The listing 
of court decisions and the court in which the decision was reached came 
from the National Agricultural Law Center at the University of 
Arkansas.\79\ GIPSA then reviewed each case since 2000 and classified 
it as either a competition, financial, or trade practice case. GIPSA 
then examined each case to determine which cases involved alleged 
violations of sections 202(a) and 202(b) and which of those cases the 
court required demonstration of harm or likelihood of harm to 
competition.
---------------------------------------------------------------------------

    \79\ http://nationalaglawcenter.org/aglaw-reporter/case-law-index/packers-and-stockyards.
---------------------------------------------------------------------------

    GIPSA found 22 cases which involved alleged violations of sections 
202(a) and 202(b) and addressed the issue of demonstrating harm or 
likelihood of harm to competition. Of those 22 cases, GIPSA found that 
the courts required demonstration of harm or likelihood of harm to 
competition in eight cases and did not require demonstration of a harm 
or likelihood of harm to competition in 14 cases. However, these 14 
cases where demonstration of harm or likelihood of harm to competition 
was not required were not evenly distributed among the cattle, hog, and 
poultry industries. Courts have only required a demonstration of harm 
or likelihood of harm to competition in 20 percent of the cases 
alleging violations of sections 202(a) and 202(b) in the cattle and hog 
industries since 2000. GIPSA found that the courts have required a 
demonstration of harm or likelihood of harm to competition in 50 
percent of the cases alleging violations of sections 202(a) and 202(b) 
in the poultry industry since 2000. The fact that demonstration of harm 
or likelihood of harm to competition was not required in every case is 
consistent with Sec.  201.3(a), which states that demonstration of harm 
or likelihood of harm to competition is not required in all cases. As 
these cases have all involved livestock packers, swine contractors, and 
live poultry dealers and are a matter of public record, GIPSA believes 
that packers, swine contractors, and live poultry dealers are already 
aware that courts have not required demonstration of a harm or 
likelihood of harm to competition in all cases. This is another reason 
why GIPSA expects packers, swine contractors, and live poultry dealers 
to likely take a ``wait and see'' approach.
    Therefore, due to the likelihood of status quo rulings by courts 
and the rationality of livestock packers, swine contractors, and live 
poultry dealers to tend toward a ``wait and see'' approach, GIPSA 
estimates the upper boundary estimate to be between 20 percent of the 
Informa Study cattle and hog industry estimates, 50 percent of the 
Informa Study poultry industry estimate and zero percent of the Informa 
Study estimates after applying the first two adjustments. Zero percent 
would mean that there are no industry adjustments from Sec.  201.3(a).
    Given the uncertainty in how the industry will respond to Sec.  
201.3(a), GIPSA selected one half of 20 percent of the Informa Study 
estimates for cattle and hogs, one half of 50 percent of the poultry 
industry estimate from the Informa Study estimates as its point 
estimate. Thus, GIPSA applied ten percent of the cattle and hog Informa 
Study estimates and 25 percent of the poultry Informa Study estimates 
as its point estimate after applying the first two adjustments. The 
following table shows the estimated upper boundary costs for Sec.  
201.3(a) on an annual and ten-year cost basis based on the adjusted 
Informa Study cost estimates.

                 Table 20--Upper Boundary Annual Costs of Sec.   201.3(a)--Preferred Alternative
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hog ($        Poultry ($       Total ($
                      Year                           millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
2017............................................           28.14           12.49           35.87           76.49
2018............................................           43.67           14.68           49.78          108.13
2019............................................           63.08           19.82           62.93          145.82
2020............................................           63.08           24.95           62.93          150.96
2021............................................           63.08           23.85           50.72          137.65
2022............................................           57.26           18.71           37.57          113.54
2023............................................           47.55           13.58           18.78           79.92
2024............................................           32.03           13.21            5.64           50.87
2025............................................           24.26            7.34            5.64           37.24
2026............................................           24.26            7.34            5.64           37.24
                                                 ---------------------------------------------------------------
    Totals......................................          446.42          155.97          335.47          937.86
----------------------------------------------------------------------------------------------------------------

    At the upper boundary in the first full year after implementation, 
GIPSA estimates that Sec.  201.3(a) will result in an additional $76.49 
million in direct and indirect costs in the livestock and poultry 
industries, with $28.14 million in the cattle industry, $12.49 million 
in the hog industry, and $35.87 million in the poultry industry. GIPSA 
expects the

[[Page 92585]]

upper boundary of the ten-year total cost of Sec.  201.3(a) to be 
$937.86 million.
F. Regulatory Alternative 2: Upper Boundary--NPV of Ten-Year Total 
Costs of the Preferred Alternative
    GIPSA calculated the NPV of the ten-year total costs of the 
regulation using both a three percent and seven percent discount rate 
and the NPVs appear in the following table.

     Table 21--NPV of Upper Boundary of Ten-Year Total Cost of Sec.
                     201.3(a)--Preferred Alternative
------------------------------------------------------------------------
                                                             Preferred
                      Discount rate                          option ($
                                                             millions)
------------------------------------------------------------------------
3 Percent...............................................          818.97
7 Percent...............................................          692.49
------------------------------------------------------------------------

    GIPSA expects the NPV of the upper boundary of the ten-year total 
costs of Sec.  201.3(a) to be $818.97 million at a three percent 
discount rate and $692.49 million at a seven percent discount rate.
G. Regulatory Alternative 2: Upper Boundary--Annualized Costs of the 
Preferred Alternative
    GIPSA then annualized the costs of Sec.  201.3(a) at the upper 
boundary using both a three percent and seven percent discount rate and 
the results appear in the following table.

     Table 22--Annualized Costs of Sec.   201.3(a)--Preferred Option
------------------------------------------------------------------------
                                                             Preferred
                      Discount rate                          option ($
                                                             millions)
------------------------------------------------------------------------
3 Percent...............................................           96.01
7 Percent...............................................           98.60
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec.  201.3(a) at the upper 
boundary to be $96.01 million at a three percent discount rate and 
$98.60 million at a seven percent discount rate.
H. Sensitivity Analysis of the Upper Boundary
    In the section above, GIPSA explained that it chose 10 percent of 
the cattle and hog estimates from the Informa Study and 25 percent of 
the poultry estimate from the Informa Study as its point estimate for 
the upper boundary costs. Because of the uncertainty over the eventual 
impacts of this rule on industry behavior, GIPSA evaluates the 
sensitivity of its upper bound estimate to an alternative set of 
assumptions. GIPSA presents three alternative sets of assumptions for 
calculating the upper bound estimate.
    For the first scenario, GIPSA applies the full adjustment to the 
Informa Study cost estimates, specifically, 20 percent for cattle and 
hogs and 50 percent for poultry. In that case, GIPSA's estimate of the 
upper bound would be twice as high as presented in the previous 
section. For the second scenario, Sec.  201.3(a) is assumed to impact 
industry behavior for the poultry industry only, (that is, zero percent 
of the Informa Study estimate for cattle and hogs, and 25 percent of 
the estimate for poultry). In that scenario, the upper bound estimate 
would be the same as presented in Table 20, above, for poultry, and 
would be the lower boundary estimate for cattle and hogs as shown in 
Table 15. For a third scenario, all the Informa Study estimates are 
adjusted to zero assuming that there are no indirect costs of 
adjustment to the rule. In that case, the lower boundary estimate, only 
reflecting litigation costs, as shown in Tables 15 through 17 would be 
the result.
    GIPSA calculated the NPV of the ten-year total costs of the 
regulation using both a three percent and seven percent discount rate 
for each of the three scenarios described above and the NPVs appear in 
the following table.

  Table 23--Sensitivity Analysis of the Upper Boundary Estimate of the Ten-Year Total Cost of Sec.   201.3(a)--
                                     Preferred Alternative--Expressed in NPV
----------------------------------------------------------------------------------------------------------------
                                                  Point estimate   Scenario 1 ($  Scenario 2  ($  Scenario 3  ($
                  Discount rate                    ($ millions)      millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................          818.97        1,637.94          319.43           58.62
7 Percent.......................................          692.49        1,384.98          276.18           50.03
----------------------------------------------------------------------------------------------------------------
Scenario 1: Adjustment to Informa of 20% for cattle and hogs, 50% for poultry.
Scenario 2: Adjustment to Informa of 0% for cattle and hogs, 25% for poultry.
Scenario 3: Adjustment to Informa of 0% for cattle and hogs, and poultry.

    GIPSA then annualized the estimated costs of Sec.  201.3(a) at the 
upper boundary for the three sensitivity scenarios using both a three 
percent and seven percent discount rate and the results appear in the 
following table.

  Table 24--Sensitivity Analysis of the Upper Boundary Estimate of the Ten-Year Total Cost of Sec.   201.3(a)--
                                        Preferred Alternative--Annualized
----------------------------------------------------------------------------------------------------------------
                                                  Point estimate   Scenario 1 ($   Scenario 2 ($   Scenario 3 ($
                  Discount rate                    ($ millions)      millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................           96.01          192.02           37.45            6.87
7 Percent.......................................           98.60          197.19           39.32            7.12
----------------------------------------------------------------------------------------------------------------
Scenario 1: Adjustment to Informa of 20% for cattle and hogs, 50% for poultry.
Scenario 2: Adjustment to Informa of 0% for cattle and hogs, 25% for poultry.
Scenario 3: Adjustment to Informa of 0% for cattle and hogs, and poultry.


I. Regulatory Alternative 2: Range of Annualized Costs of the Preferred 
Alternative

    The following table shows the full range of the annualized costs of 
Sec.  201.3(a) at both a three percent and seven percent discount rate.

[[Page 92586]]



          Table 25--Range of Annualized Costs--Preferred Option
------------------------------------------------------------------------
                                               Lower           Upper
              Discount rate                 boundary ($     boundary ($
                                             millions)       millions)
------------------------------------------------------------------------
3 Percent...............................            6.87           96.01
7 Percent...............................            7.12           98.60
------------------------------------------------------------------------

    GIPSA estimates the annualized costs of Sec.  201.3(a) will range 
from $6.87 million to $96.01 million at a three percent discount rate 
and from $7.12 million to $98.60 million at a seven percent discount 
rate.

J. Regulatory Alternative 2: Point Estimate of Annualized Costs of the 
Preferred Alternative

    The range of potential costs is broad. The reason there is a broad 
range of potential costs is because Sec.  201.3(a) has applicability to 
the livestock and poultry industries and it is difficult to predict how 
the industries will respond. If the industries do not change any of 
their current business practices, GIPSA expects additional litigation 
to be the only costs and the costs of the regulation will be closer to 
the lower boundary. If, however, the industries respond by reducing the 
use of AMAs and restricting their use of incentive pay, GIPSA expects 
the costs of the regulation to be closer to the upper boundary. Based 
on the uncertainty over how the industries will respond, GIPSA believes 
that the mid-point in the range of estimated annualized costs is the 
best available point estimate of the costs of Sec.  201.3(a). The point 
estimate along with the lower and upper boundary estimates appear in 
the table below.

                       Table 26--Point Estimate of Annualized Costs--Preferred Alternative
----------------------------------------------------------------------------------------------------------------
                                                                       Lower                           Upper
                          Discount rate                             boundary ($   Point estimate    boundary ($
                                                                     millions)     ($ millions)      millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................................            6.87           51.44           96.01
7 Percent.......................................................            7.12           52.86           98.60
----------------------------------------------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec.  201.3(a) at the point 
estimate to be $51.44 million at a three percent discount rate and 
$52.86 million at a seven percent discount rate. Based on the 
discussion of GIPSA's expectation that the cattle, hog, and poultry 
industries will likely take a ``wait and see'' approach to how the 
courts will interpret Sec.  201.3(a) and for courts to take a status 
quo approach, GIPSA believes the point estimates of the preferred 
alternative to be the best available estimates of the costs of Sec.  
201.3(a).

K. Regulatory Alternative 2: Sensitivity Analysis of Point Estimates of 
Annualized Costs

    In its estimate of litigation costs presented above, GIPSA 
recognized the uncertainty in estimating litigation costs and conducted 
a sensitivity analysis. GIPSA estimated that the lower boundary of the 
first-year costs of Sec.  201.3(a) were $4.84 million at the lower 
percentile, $8.89 million at the average percentile, and $13.22 million 
at the upper percentile.\80\ GIPSA relied on the average estimate of 
litigation costs as the lower boundary of the litigation costs of Sec.  
201.3(a).
---------------------------------------------------------------------------

    \80\ See Tables 11-13 above.
---------------------------------------------------------------------------

    To consider the effects of the uncertainty in its estimation of 
litigation costs, GIPSA annualized its litigation costs estimates at 
the lower percentile, the average percentile, and the upper percentile 
and the results appear in the following table.

                 Table 27--Annualized Range of Estimated Litigation Costs--Preferred Alternative
----------------------------------------------------------------------------------------------------------------
                                                                       Lower                           Upper
                          Discount rate                            percentile ($    Average ($    percentile  ($
                                                                     millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................................            3.74            6.87           10.22
7 Percent.......................................................            4.54            7.12           12.41
----------------------------------------------------------------------------------------------------------------

    GIPSA then applied this uncertainty to its point estimates of the 
annualized costs of Sec.  201.3(a) by subtracting the difference of the 
lower percentile of estimated litigation costs and the point estimate 
at both the three and seven percent discount rates and added the 
difference of the upper percentile of estimated litigation costs and 
the point estimate at both the three and seven percent discount rates. 
The results of the sensitivity analysis appear in the following table.

[[Page 92587]]



             Table 28--Annualized Range of Point Estimates of Sec.   201.3(a)--Preferred Alternative
----------------------------------------------------------------------------------------------------------------
                                                                       Lower                           Upper
                          Discount rate                            percentile ($  Point estimate  percentile  ($
                                                                     millions)     ($ millions)      millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................................           49.87           51.44           53.11
7 Percent.......................................................           51.57           52.86           55.50
----------------------------------------------------------------------------------------------------------------

    GIPSA estimates that the point estimates of the annualized costs of 
Sec.  201.3(a) will range from $49.87 million at the lower percentile 
to $53.11 million at the upper percentile using a three percent 
discount rate. At the seven percent discount rate, GIPSA estimates that 
the point estimate of the annualized costs will range from $51.57 
million at the lower percentile to $55.50 million at the upper 
percentile. Given the size of the range between the upper and lower 
boundary of the estimated annualized costs, GIPSA's point estimate is 
not overly sensitive to the uncertainty in the estimated litigation 
costs. Thus, GIPSA believes the point estimates of the preferred 
alternative to be the best available estimate of the costs of Sec.  
201.3(a).

L. Regulatory Alternative 2: Benefits of the Preferred Alternative

    GIPSA was unable to quantify the benefits of Sec.  201.3(a). 
However, there are qualitative benefits of Sec.  201.3(a) that merit 
discussion. The primary qualitative benefit of Sec.  201.3(a) is 
ability of livestock producers, swine production contract growers, and 
poultry growers to have more protections and be treated more fairly, 
which may lead to more equitable contracts. A simple example is the 
inaccurate weighing of slaughter-ready poultry grown by a poultry 
grower for a live poultry dealer. The poultry grower is harmed if the 
true weight is above the inaccurate weight because the poultry grower's 
payment is typically tied to the poultry grower's efficiency in growing 
poultry, which in this case is artificially low due to the inaccurate 
weight of the live birds. The impact of this harm to the poultry grower 
is very small when compared to the entire industry and there is no 
discernable or provable harm to competition from this one instance. 
However because there is no discernible or provable harm or likely harm 
to competition, courts have been reluctant to find a violation of 
section 202(a) of the P&S Act in such a situation, despite the harm 
suffered by the individual poultry grower.
    However, if similar, though unrelated, harm is experienced by a 
large number of poultry growers, the cumulative effect does result in a 
discernible and provable harm to competition. The individual harm is 
inconsequential to the poultry industry, but the sum total of all 
individual harm has the potential to be quite significant when compared 
to the poultry industry and therefore, courts have found harm or likely 
harm to competition in such a situation. Under proposed Sec.  
201.210(b)(8), failing to ensure accurate weights of live poultry, 
absent a legitimate business justification, will constitute an unfair, 
unjustly discriminatory, or deceptive practice or device and a 
violation of section 202(a) of the P&S Act. Whether or not the conduct 
harms or is likely to harm competition becomes irrelevant.
    GIPSA expects Sec.  201.3(a) to increase enforcement actions 
against live poultry dealers for violations of sections 202(a) and/or 
202(b) when the conduct or action does not harm or is not likely to 
harm competition. Several appellate courts have disagreed with USDA's 
interpretation of the P&S Act that harm or likely harm to competition 
is not necessary in all cases to prove a violation of sections 202(a) 
and/or 202(b). In some cases in which the United States was not a 
party, these courts have concluded that plaintiffs could not prove 
their claims under sections 202(a) and/or (b) without proving harm to 
competition or likely harm to competition. One reason the courts gave 
for declining to defer to USDA's interpretation of the statute is that 
USDA had not previously enshrined its interpretation in a regulation. 
Interim final Sec.  201.3(a) corrects the issue and courts may now give 
deference to USDA's interpretation.
    GIPSA expects the result will be additional enforcement actions 
that will be successfully litigated and serve as a deterrent to 
violating sections 202(a) and/or 202(b). Benefits to the industries and 
the markets from additional enforcement will also arise from 
establishing parity of negotiating power between livestock producers, 
swine production contract growers, and poultry growers and packers, 
swine contractors, and live poultry dealers by reducing the ability to 
use market power with the resulting dead weight losses.\81\
---------------------------------------------------------------------------

    \81\ Nigel Key and Jim M. MacDonald discuss evidence for the 
effect of concentration on grower compensation in ``Local Monopsony 
Power in the Market for Broilers? Evidence from a Farm Survey'' 
selected paper American Agri. Economics Assn. meeting Orlando, FL, 
July 27-29, 2008.
---------------------------------------------------------------------------

    Section 201.3(a) also provides additional protections for livestock 
producers, swine production contract growers, and poultry growers 
against unfair, unjustly discriminatory, and deceptive practices or 
devices and undue or unreasonable preferences, advantages, prejudices, 
or disadvantages since demonstration of harm to competition is required 
in all cases. GIPSA believes the standard articulated in Sec.  201.3(a) 
is consistent with its mission ``[T]o protect fair trade practices, 
financial integrity, and competitive markets for livestock, meats, and 
poultry.'' \82\ By making it clear that demonstration of harm or likely 
harm to competition is not necessary in all cases, this interim final 
rule promotes fairness and equity for livestock producers, swine 
production contract growers, and poultry growers.\83\
---------------------------------------------------------------------------

    \82\ https://www.gipsa.usda.gov/laws/law/PS_act.pdf. Accessed on 
September 19, 2016.
    \83\ See additional discussion in Steven Y. Wu and James 
MacDonald (2015) ``Economics of Agricultural Contract Grower 
Protection Legislation,'' Choices 30(3): 1-6.
---------------------------------------------------------------------------

M. Regulatory Alternative 2: Cost-Benefit Summary of the Preferred 
Alternative
    GIPSA estimates the annualized costs of Sec.  201.3(a) to range 
from $6.87 million to $96.01 million at the three percent discount rate 
and from $7.12 million to $98.60 million at the seven percent discount 
rate. The range of potential costs is broad. GIPSA relied on its 
expertise to arrive at a point estimate range of expected annualized 
costs. GIPSA expects that the cattle, hog, and poultry industries will 
primarily take a ``wait and see'' approach to how courts will interpret 
Sec.  201.3(a) and courts to take a status quo approach and only 
slightly adjust their use of AMAs and performance-based payment 
systems. GIPSA estimates that the annualized costs of Sec.  201.3(a) 
will be $51.44 million at a three percent discount rate and $52.86 
million at a seven percent discount rate based on an anticipated ``wait 
and see'' approach and industry adjustments.

[[Page 92588]]

    The primary benefit of Sec.  201.3(a) is the increased ability for 
the enforcement of the P&S Act for violations of sections 202(a) and/or 
202(b), which do not result in harm or likely harm to competition. 
This, in turn, will reduce instances of unfair, unjustly 
discriminatory, or deceptive practices or devices and undue or 
unreasonable preferences, advantages, prejudices, or disadvantages and 
increased efficiencies in the marketplace. The benefit of additional 
enforcement of the P&S Act will accrue to all segments of the value 
chain in the production of livestock and poultry, and ultimately to 
consumers.
N. Regulatory Alternative 3: Small Business Exemption
    The third regulatory alternative that GIPSA considered is issuing 
Sec.  201.3(a) as an interim final regulation, but exempting small 
businesses, as defined by the Small Business Administration, from 
having to comply with it.\84\ To estimate the expected costs of 
exempting small business, GIPSA relied on the percentage of small 
businesses in the cattle, hog, and poultry industries that are 
developed and presented in the Regulatory Flexibility Analysis section 
below.
---------------------------------------------------------------------------

    \84\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

    To arrive at the estimated costs of Sec.  201.3(a) based on 
exempting small businesses, GIPSA weighted the point estimates, lower 
boundary, and upper boundary of cost estimates by the percentage of 
cattle and hogs processed by packers that are large businesses and the 
percentage of contracts held by swine contractors and live poultry 
dealers that are large businesses. GIPSA estimates that small 
businesses account for 19.3 percent of the cattle slaughtered. For the 
hog industry, GIPSA estimates that small businesses slaughter 17.8 
percent of hogs and that 65 percent of swine contractors are small 
businesses. GIPSA estimates that 10.27 percent of live poultry dealers 
are classified as small businesses.
O. Regulatory Alternative 3: Lower Boundary of Cost Spectrum--
Litigation Costs of the Small Business Exemption
    As discussed above, GIPSA considers the lower boundary of costs 
from Sec.  201.3(a) to be increased litigation with no adjustments by 
the cattle, hog, and poultry industries to reduce their use of AMAs or 
incentive pay systems and there are no changes to existing marketing or 
production contracts. GIPSA used the average of the litigation cost 
estimates as the lower boundary for the estimated costs of Sec.  
201.3(a). GIPSA then weighted the lower boundary cost estimate under 
the preferred alternative by the percentage of large businesses in the 
cattle, hog, and poultry industries. The estimates appear in the table 
below. The preferred alternative is also shown for convenience.

  Table 29--Lower Boundary Annual Total Costs--Small Business Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
                  Year                    alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
2017....................................            8.89            7.49
2018....................................            8.89            7.49
2019....................................            8.89            7.49
2020....................................            8.89            7.49
2021....................................            8.89            7.49
2022....................................            7.41            6.24
2023....................................            5.93            4.99
2024....................................            4.44            3.74
2025....................................            2.96            2.50
2026....................................            1.48            1.25
                                         -------------------------------
  Totals................................           66.67           56.16
------------------------------------------------------------------------

    At the lower boundary with a small business exemption, GIPSA 
estimates that Sec.  201.3(a) will result in an additional $7.49 
million in litigation costs in the cattle, hog, and poultry industries 
in the first full year following implementation. GIPSA expects the 
lower boundary of the ten-year total costs of Sec.  201.3(a) with a 
small business exemption to be $56.16 million.
P. Regulatory Alternative 3: Lower Boundary--NPV of Total Costs of the 
Small Business Exemption
    GIPSA calculated the lower boundary of the NPV of the ten-year 
total costs of the regulation under the small business exemption using 
both a three percent and seven percent discount and the NPVs appear in 
the following table. The preferred alternative is also shown for 
convenience.

   Table 30--Lower Boundary NPV of Ten-Year Total Cost--Small Business
                                Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
              Discount rate               alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
3 Percent...............................           58.62           49.38
7 Percent...............................           50.03           42.14
------------------------------------------------------------------------


[[Page 92589]]

    GIPSA expects the NPV of the lower boundary of the ten-year total 
costs of Sec.  201.3(a) under a small business exemption to be $49.38 
million at a three percent discount rate and $42.14 million at a seven 
percent discount rate.
Q. Regulatory Alternative 3: Lower Boundary--Annualized Costs of the 
Small Business Exemption
    GIPSA then annualized the NPV of the ten-year total costs of Sec.  
201.3(a) at the lower boundary using both a three percent and seven 
percent discount rate and the results appear in the following table. 
The preferred alternative is also shown for convenience.

 Table 31--Lower Boundary of Annualized Costs--Small Business Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
              Discount rate               alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
3 Percent...............................            6.87            5.79
7 Percent...............................            7.12            6.00
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec.  201.3(a) at the lower 
boundary with a small business exemption to be $5.79 million at a three 
percent discount rate and $6.00 million at a seven percent discount 
rate.
R. Regulatory Alternative 3: Upper Boundary of Cost Spectrum--Small 
Business Exemption
    As discussed above, the upper boundary of the cost spectrum occurs 
if the cattle, hog, and poultry industries adjust their use of AMAs and 
incentive pay systems and make systematic changes in their marketing 
and production contracts to reduce the threat of litigation.
    For the upper boundary cost estimates under the small business 
exemption, GIPSA weighted the upper boundary cost estimates under the 
preferred alternative by the percentage of large businesses in the 
cattle, hog, and poultry industries and the estimates appear in the 
table below. For convenience, the estimated costs of the preferred 
alternative are shown in addition to the costs of the small business 
exemption.

  Table 32--Upper Boundary Annual Total Costs--Small Business Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
                  Year                    alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
2017....................................           76.49           60.08
2018....................................          108.13           86.00
2019....................................          145.82          115.60
2020....................................          150.96          117.73
2021....................................          137.65          106.32
2022....................................          113.54           87.69
2023....................................           79.92           60.87
2024....................................           50.87           36.39
2025....................................           37.24           27.68
2026....................................           37.24           27.68
                                         -------------------------------
  Totals................................          937.86          726.05
------------------------------------------------------------------------

    At the upper boundary with a small business exemption, GIPSA 
estimates that Sec.  201.3(a) will result in an additional $60.08 
million in direct and indirect costs in the cattle, hog, and poultry 
industries in the first full year following implementation. GIPSA 
expects the upper boundary of the ten-year total costs of Sec.  
201.3(a) with a small business exemption to be $726.05 million.
S. Regulatory Alternative 3: Upper Boundary--NPV of Ten-Year Total 
Costs of the Small Business Exemption
    GIPSA calculated the upper boundary of the NPV of the ten-year 
total costs of the regulation under the small business exemption using 
both a three percent and seven percent discount and the NPVs appear in 
the following table. The preferred alternative is also shown for 
convenience.

  Table 33--Upper Boundary NPV of Ten-Year Total Costs--Small Business
                                Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
              Discount rate               alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
3 Percent...............................          818.97          634.97
7 Percent...............................          692.49          537.90
------------------------------------------------------------------------


[[Page 92590]]

    GIPSA expects the NPV of the upper boundary of the NPV of the ten-
year total costs of Sec.  201.3(a) under a small business exemption to 
be $634.97 million at a three percent discount rate and $537.90 million 
at a seven percent discount rate.
T. Regulatory Alternative 3: Upper Boundary--Annualized Costs of the 
Preferred Alternative
    GIPSA then annualized the costs of Sec.  201.3(a) at the upper 
boundary using both a three percent and seven percent discount rate and 
the results appear in the following table. The preferred alternative is 
also shown for convenience.

 Table 34--Upper Boundary of Annualized Costs--Small Business Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
              Discount rate               alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
3 Percent...............................           96.01           74.44
7 Percent...............................           98.60           76.58
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec.  201.3(a) at the upper 
boundary with a small business exemption to be $74.44 million at a 
three percent discount rate and $76.58 million at a seven percent 
discount rate.
U. Regulatory Alternative 3: Point Estimates--Annualized Costs of the 
Small Business Exemption
    Using the same methodology, GIPSA also estimated the point 
estimates of the annualized costs of Sec.  201.3(a) with a small 
business exemption using both a three percent and seven percent 
discount rate and the results appear in the following table. The 
preferred alternative is also shown for convenience.

 Table 35--Point Estimate of Annualized Costs--Small Business Exemption
------------------------------------------------------------------------
                                                               Small
                                             Preferred       business
              Discount rate               alternative ($   exemption ($
                                             millions)       millions)
------------------------------------------------------------------------
3 Percent...............................           51.44           40.11
7 Percent...............................           52.86           41.29
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec.  201.3(a) at the point 
estimates with a small business exemption to be $40.11 million at a 
three percent discount rate and $41.29 million at a seven percent 
discount rate.
V. Regulatory Alternative 3: Range of Annualized Costs of the Small 
Business Exemption
    The following table shows the range of the annualized costs of 
Sec.  201.3(a) at both a three percent and seven percent discount rate 
under the small business exemption.

                          Table 36--Range of Annualized Costs--Small Business Exemption
----------------------------------------------------------------------------------------------------------------
                                                                  Lower boundary  Point estimate  Upper boundary
                          Discount rate                            ($ millions)    ($ millions)    ($ millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................................            5.79           40.11           74.44
7 Percent.......................................................            6.00           41.29           76.58
----------------------------------------------------------------------------------------------------------------

    GIPSA estimates the annualized costs of Sec.  201.3(a) to range 
from $5.79 million to $74.44 million at the three percent discount rate 
and from $6.00 million to $76.58 million at the seven percent discount 
rate. The range of potential costs is broad and GIPSA relied on its 
expertise and the methodology discussed above to arrive at point 
estimates of the costs within the range that GIPSA expects to occur. 
GIPSA expects the most likely point estimates of annualized costs to be 
$40.11 million at a three percent discount rate and $41.29 million at a 
seven percent discount rate.
W. Regulatory Alternative 3: Benefits of the Small Business Exemption
    The benefits of Sec.  201.3(a) with a small business exemption are 
the same as in the preferred alternative except that the benefits for 
livestock producers, swine production contract growers, and poultry 
growers will only be captured by those livestock producers, swine 
production contract growers, and poultry growers selling or growing 
livestock and poultry for packers, swine contractors, and poultry 
dealers classified as large businesses.
X. Regulatory Alternative 3: Cost-Benefit Summary of the Small Business 
Exemption
    GIPSA estimates the annualized costs of Sec.  201.3(a) under a 
small business exemption to range from $5.79 million to $74.44 million 
at the three percent discount rate and from $6.00 million to $76.58 
million at the seven percent discount rate. GIPSA expects the point 
estimates of the annualized costs to be $40.11 million at a three 
percent discount rate and $41.29 million at a seven percent discount 
rate.

[[Page 92591]]

Cost-Benefit Comparison of Regulatory Alternatives
    The status quo option has zero marginal costs and benefits as GIPSA 
does not expect any changes in the cattle, hog, or poultry industries. 
GIPSA compared the annualized costs of the preferred alternative to the 
annualized costs of the small business exemption alternative by 
subtracting the annualized costs of the small business exemption 
alternative from the preferred alternative and the results appear in 
the following table.

    Table 37--Costs Savings of the Small Business Exemption Alternative Compared to the Preferred Alternative
----------------------------------------------------------------------------------------------------------------
                                                                  Lower boundary  Point estimate  Upper boundary
                          Discount rate                            ($ millions)    ($ millions)    ($ millions)
----------------------------------------------------------------------------------------------------------------
3 Percent.......................................................            1.08           11.33           21.57
7 Percent.......................................................            1.12           11.57           22.01
----------------------------------------------------------------------------------------------------------------

    The annualized cost savings of the small business exemption 
alternative is between $1.08 million and $21.57 million using a three 
percent discount rate and between $1.12 million and $22.01 million 
using a seven percent discount rate. At GIPSA's point estimates, the 
annualized costs of the small business exemption alternative is $11.33 
million less than the preferred alternative using a three percent 
discount rate and $11.57 million less expensive using a seven percent 
discount rate.
    The data presented in Table 4 above show that over 50 percent of 
broiler growers have only one or two integrators in their local area. 
This limited integrator choice may accentuate the risks of contracting. 
Poultry growers with contract growing arrangements with both small and 
large live poultry dealers face these risks.
    Similarly, the potential market failures or unequal bargaining 
power among contracting parties due to monopsony or oligopsony market 
power or asymmetric information likely applies to both production and 
marketing contracts regardless of whether the packer, swine contractor, 
or live poultry dealer is large or small due to the regional nature of 
concentration. The result is that the contracts may have detrimental 
effects on one of the contracting parties and may result in 
inefficiencies in the marketplace.
    One purpose of Sec.  201.3(a) is to mitigate the risks of potential 
market failures or unequal bargaining power to all livestock producers, 
swine production contract growers, and poultry growers, not just the 
livestock producers, swine production contract growers, and poultry 
growers selling or growing livestock and poultry for large packers, 
swine contractors, and poultry dealers. The small business exemption 
would continue to subject the livestock producers, swine production 
contract growers, and poultry growers with contractual arrangements 
with small packers, swine contractors, and live poultry dealers to the 
contracting risks and potential market failures discussed above. GIPSA 
believes that the benefits of Sec.  201.3(a) should be captured by all 
livestock producers, swine production contract growers, and poultry 
growers.
    GIPSA considered three regulatory alternatives and believes the 
preferred alternative is the best option. All livestock producers, 
swine production contract growers, and poultry growers, regardless of 
the size of the firm with which they contract, will capture the 
benefits of Sec.  201.3(a).
Regulatory Flexibility Analysis of the Preferred Option
    The Small Business Administration (SBA) defines small businesses by 
their North American Industry Classification System Codes (NAICS).\85\ 
SBA considers broiler and turkey producers and swine contractors, NAICS 
codes 112320, 112330, and 112210 respectively, to be small businesses 
if sales are less than $750,000 per year. Live poultry dealers, NAICS 
311615, are considered small businesses if they have fewer than 1,250 
employees. Beef and pork packers, NAICS 311611, are defined as small 
businesses if they have fewer than 1,000 employees.
---------------------------------------------------------------------------

    \85\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf. Accessed on September 19, 2016.
---------------------------------------------------------------------------

    The Census of Agriculture (Census) indicates there were 558 farms 
that sold their own hogs and pigs in 2012 and that identified 
themselves as contractors or integrators. The Census provides the 
number of head sold from their own operations by size classes for swine 
contractors, but not the value of sales nor number of head sold from 
the farms of the contracted production. Thus, to estimate the entity 
size and average per-entity revenue by the SBA classification, the 
average value per head for sales of all swine operations is multiplied 
by production values for firms in the Census size classes for swine 
contractors. The estimates reveal that although about 65 percent of 
swine contractors had sales of less than $750,000 in 2012 and would 
have been classified as small businesses, these small businesses 
accounted for only 2.8 percent of the hogs produced under production 
contracts. Additionally, there were 8,031 swine producers in 2012 with 
swine contracts and about half of these producers would have been 
classified as small businesses.
    Currently, there are 133 live poultry dealers that would be subject 
to Sec.  201.3(a). According to U.S. Census data on County Business 
Patterns, there were 74 live poultry dealers that had more than 1,250 
employees in 2013. The difference yields approximately 59 live poultry 
dealers that have fewer than 1,250 employees and would be considered as 
small businesses that would be subject to the interim final regulation.
    GIPSA records for 2014 indicated there were 21,925 poultry 
production contracts in effect, of which 13,370, or 61 percent, were 
held by the largest six live poultry dealers, and 90 percent (19,673) 
were held by the largest 25 firms. These 25 firms are all in the large 
business SBA category, whereas the 21,925 poultry growers holding the 
other end of the contracts are almost all small businesses by SBA's 
definitions.
    Poultry dealers classified as large businesses are responsible for 
about 89.7 percent of the poultry contracts. Assuming that small 
businesses will bear 10.3 percent of the costs in the first full year 
Sec.  201.3(a) is effective, between $590,000 \86\ at the lower 
boundary and $3.7 million \87\ at the upper boundary in additional 
costs would fall on live poultry dealers classified as small 
businesses. This amounts to average

[[Page 92592]]

estimated costs for each live poultry dealer classified as a small 
business of between $10,000 and $62,400.
---------------------------------------------------------------------------

    \86\ Lower bound cost estimate of $5.74 million (Table 12) x 
10.27 percent of firms that are small businesses = $589 thousand.
    \87\ Upper bound cost estimate of $35.87 million (Table 20) x 
10.27 percent of firms that are small businesses = $3.7 million.
---------------------------------------------------------------------------

    As of June 2016, GIPSA records identified 359 beef and pork packers 
actively purchasing cattle or hogs for slaughter. Many firms 
slaughtered more than one species of livestock. Of the 359 beef and 
pork packers, 161 processed both cattle and hogs, 132 processed cattle 
but not hogs, and 66 processed hogs but not cattle. GIPSA records had a 
total of 293 cattle slaughterers and 227 hog slaughterers. Two hundred 
eighty-seven of the cattle slaughterers and 219 of the hog slaughterers 
would be classified as small businesses.
    GIPSA estimates that small businesses accounted for 19.3 percent of 
the cattle and 17.8 percent of the hogs slaughtered in 2015. If the 
costs of implementing Sec.  201.3(a) are proportional to the number of 
head processed, then in 2017, the first full year the regulation would 
be effective, GIPSA expects between $507,000 \88\ and $5.4 million \89\ 
in additional costs would fall on beef packers classified as small 
businesses. This amounts to a range of $1,800 to $18,900 for each beef 
packer classified as a small business. GIPSA expects, between $13,000 
\90\ and $308,000 \91\ would fall on pork packers classified as small 
businesses, and between $12,500 \92\ and $301,000 \93\ would fall on 
swine contractors classified as small businesses. This amounts to 
average estimated costs for each pork packer classified as a small 
business of between $60 and $1,400, and for each swine contractor 
classified as a small business of between $35 and $831 in the first 
full year the regulation would be effective.
---------------------------------------------------------------------------

    \88\ Lower bound cost estimate of $2.63 million x 19.3 percent 
of slaughter in small businesses = $507 thousand.
    \89\ Upper bound cost estimate of $28.14 million x 19.3 percent 
of slaughter in small businesses = $5.4 million.
    \90\ Lower bound cost estimate of $520 thousand x 17.8 percent 
of slaughter in small business x 13.8 percent of costs attributed to 
packers = $13,000.
    \91\ Upper bound cost estimate of $12.49 million x 17.8 percent 
of slaughter in small business x 13.8 percent of costs attributed to 
packers = $308 thousand.
    \92\ Lower bound cost estimate of $520 thousand x 2.8 percent of 
contracted hogs produced by swine contractors that are small 
businesses x 86.2 percent of costs attributed to swine contractors = 
$12,500.
    \93\ Upper bound cost estimate of $12.49 million x 2.8 percent 
of contracted hogs produced by swine contractors that are small 
businesses x 86.2 percent of costs attributed to swine contractors = 
$301 thousand.
---------------------------------------------------------------------------

    Annualized ten-year costs discounted at a three percent interest 
rate would fall between $392,000 and $8.7 million for the cattle 
industry, between $20,000 and $772,000 for the hog industry, and 
between $456,000 and $3.6 million for the poultry industry. This 
amounts to average estimated costs ranging from $1,400 to $30,400 for 
each beef packer, $45 to $1,800 for each pork packer, $27 to $1,053 for 
each swine contractor, and $7,700 to $61,000 for each live poultry 
dealer that is a small business. The total annualized ten-year costs 
for small businesses would be between $870,000 and $13.1 million.
    Annualized ten-year costs discounted at a seven percent interest 
rate would fall between $406,000 and $8.8 million for the cattle 
industry, $20,000 and $785,000 for the hog industry, and $473,000 and 
$3.8 million for the poultry industry. This amounts to average estimate 
costs ranging from $1,400 to $30,700 for each beef packer, $40 to 
$1,800 for each pork packer, $23 to $1,100 for each swine contractor, 
and $8,000 to $64,100 for each live poultry dealer that is a small 
business. The total annualized ten-year costs for small businesses 
would be between $900,000 and $13.4 million.
    The table below lists the expected additional costs associated with 
the proposed regulation and upper and lower bound estimates of the 
costs. It also lists the point estimate, upper bound, and lower bound 
annualized costs at three percent and seven percent interest rates.

                  Table 38--Upper and Lower Bound Costs to Small Businesses of Sec.   201.3(a)
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hogs ($       Poultry ($       Total ($
                  Estimate type                      millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
First Year Costs:
    Lower Bound.................................           0.507           0.025           0.590           1.122
    Point Estimate..............................           2.969           0.317           2.137           5.423
    Upper Bound.................................           5.430           0.609           3.684           9.723
10 years annualized at 3%:
    Lower Bound.................................           0.392           0.020           0.456           0.867
    Point Estimate..............................           4.554           0.396           2.026           6.976
    Upper Bound.................................           8.716           0.772           3.596          13.084
10 years annualized at 7%:
    Lower Bound.................................           0.406           0.020           0.473           0.899
    Point Estimate..............................           4.613           0.403           2.126           7.142
    Upper Bound.................................           8.820           0.785           3.780          13.385
----------------------------------------------------------------------------------------------------------------

    In considering the impact on small businesses, GIPSA considered the 
average costs and revenues of each small business impacted by Sec.  
201.3(a). The number of small businesses impacted by Sec.  201.3(a), by 
NAICS code, as well as the per entity, first-year and annualized costs 
at both the three percent and seven percent discount rates appear in 
the following table.

[[Page 92593]]



                                 Table 39--Per Entity Upper and Lower Bound Costs to Small Businesses of Sec.   201.3(a)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Average cost per entity
                                                         -----------------------------------------------------------------------------------------------
                  NAICS                     Number  of              First-year                  Annualized costs 3%             Annualized costs 7%
                                          small business -----------------------------------------------------------------------------------------------
                                                              Low ($)        High ($)         Low ($)        High ($)         Low ($)        High ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
112210--Swine Contractor................             363              35             831              27           1,053              23           1,071
311615--Poultry.........................              59           9,996          62,443           7,727          60,957           8,010          64,066
311611--Cattle..........................             287           1,767          18,920           1,366          30,369           1,416          30,732
311611--Hogs............................             219              59           1,405              45           1,781              47           1,811
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The following table compares the average per entity first-year cost 
of Sec.  201.3(a) to the average revenue per establishment for all 
firms in the same NAICS code.

                          Table 40--Comparison of Per Entity First-Year Cost to Small Businesses of Sec.   201.3(a) to Revenues
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Average first-year cost per       Average       Cost as percent of revenue
                                                            Number  of                entity                revenue per  -------------------------------
                          NAICS                                small     --------------------------------  establishment
                                                             business         Low ($)        High ($)           ($)             Low            High
--------------------------------------------------------------------------------------------------------------------------------------------------------
112210--Swine Contractor................................             363              35             831         485,860            0.01            0.17
311615--Poultry.........................................              59           9,996          62,443      13,842,548            0.07            0.45
311611--Cattle..........................................             287           1,767          18,920       6,882,205            0.03            0.27
311611--Hogs............................................             219              59           1,405       6,882,205            0.00            0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The following table compares the average per entity annualized cost 
at a seven percent discount rate of Sec.  201.3(a) to the average 
revenue per establishment for all firms in the same NAICS code. The 
annualized costs are slightly higher at the seven percent rate than at 
the three percent rate, so only the seven percent rate is shown as it 
is the higher annualized cost.

                          Table 41--Comparison of Per Entity Annualized Cost to Small Businesses of Sec.   201.3(a) to Revenues
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Average annualized  cost per       Average       Cost as percent of revenue
                                                            Number  of                entity                revenue per  -------------------------------
                          NAICS                                small     --------------------------------  establishment
                                                             business         Low ($)        High ($)           ($)           Low (%)        High (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
112210--Swine Contractor................................             363              23           1,071         485,860            0.00            0.22
311615--Poultry.........................................              59           8,010          64,066      13,842,548            0.06            0.46
311611--Cattle..........................................             287           1,416          30,732       6,882,205            0.02            0.45
311611--Hogs............................................             219              39           1,811       6,882,205            0.00            0.03
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The revenue figures in the above table come from Census data for 
live poultry dealers and cattle and hog slaughterers, NAICS codes 
311615 and 311611, respectively.\94\ As discussed above, the Census 
provides the number of head sold by size classes for farms that sold 
their own hogs and pigs in 2012 and that that identified themselves as 
contractors or integrators, but not the value of sales nor the number 
of head sold from the farms of the contracted production. Thus, to 
estimate average revenue per establishment, GIPSA used the estimated 
average value per head for sales of all swine operations and the 
production values for firms in the Census size classes for swine 
contractors
---------------------------------------------------------------------------

    \94\ Source: http://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html. Accessed on November 29, 2016.
---------------------------------------------------------------------------

    As the results in Tables 40 and 41 demonstrate, the costs of Sec.  
201.3(a) as a percent of revenue are small as they are less than one 
percent, with the exception of the upper boundary for swine 
contractors.\95\
---------------------------------------------------------------------------

    \95\ There are significant differences in average revenues 
between swine contractors and cattle, hog, and poultry processors, 
resulting from the difference in SBA thresholds.
---------------------------------------------------------------------------

    Annualized costs savings of exempting small businesses would be 
between $870,000 and $13.1 million using a three percent discount rate 
and between $900,000 and $13.4 million using a seven percent discount 
rate. At GIPSA's point estimates, the annualized costs of the small 
business exemption alternative is $7.0 million less than the preferred 
alternative using a three percent discount rate and $7.1 million less 
expensive using a seven percent discount rate.
    Exempting small businesses would continue to subject the livestock 
producers, swine production contract growers, and poultry growers with 
contractual arrangements with small packers, swine contractors, and 
live poultry dealers to the contracting risks and potential market 
failures discussed above. GIPSA believes that the benefits

[[Page 92594]]

of Sec.  201.3(a) should be captured by all livestock producers, swine 
production contract growers, and poultry growers.
    Based on the above analyses regarding Sec.  201.3(a), GIPSA 
certifies that this rule is not expected to have a significant economic 
impact on a substantial number of small business entities as defined in 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). While confident 
in this certification, GIPSA acknowledges that individual businesses 
may have relevant data to supplement our analysis. We would encourage 
small stakeholders to submit any relevant data during the comment 
period.

B. Executive Order 12988

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. These actions are not intended to have 
retroactive effect, although in some instances they merely reiterate 
GIPSA's previous interpretation of the P&S Act. This interim final rule 
will not pre-empt 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 rule. Nothing in this interim final 
rule is intended to interfere with a person's right to enforce 
liability against any person subject to the P&S Act under authority 
granted in section 308 of the P&S Act.

C. Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' Executive Order 13175 requires Federal agencies 
to consult and coordinate with tribes on a government-to-government 
basis on policies that have tribal implications, including regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes or the distribution of power and responsibilities 
between the Federal Government and Indian tribes.
    Although GIPSA has assessed the impact of this rule on Indian 
tribes and determined that this rule does not, to our knowledge, have 
tribal implications that require tribal consultation under Executive 
Order 13175, GIPSA offered opportunities to meet with representatives 
from Tribal Governments during the comment period for the proposed rule 
(June 22 to November 22, 2010) with specific opportunities in Rapid 
City, South Dakota, on October 28, 2010, and Oklahoma City, Oklahoma on 
November 3, 2010. All tribal headquarters were invited to participate 
in these venues for consultation. GIPSA has received no specific 
indication that the rule will have tribal implications and has received 
no further requests for consultation as of the date of this 
publication. If a Tribe requests consultation, GIPSA will work with the 
Office of Tribal Relations to ensure meaningful consultation is 
provided where changes, additions, and modifications herein are not 
expressly mandated by Congress.

D. Paperwork Reduction Act

    This interim final rule does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). It does not involve collection of new or 
additional information by the federal government.

E. E-Government Act Compliance

    GIPSA is committed to compliance 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.

List of Subjects in 9 CFR Part 201

    Contracts, Livestock, Poultry, Trade practices.

    For the reasons set forth in the preamble, we amend 9 CFR part 201 
as follows:

PART 201--REGULATIONS UNDER THE PACKERS AND STOCKYARDS ACT

0
1. The authority citation for part 201 continues to read as follows:

    Authority: 7 U.S.C. 181-229c.


0
2. Section 201.3 is amended by redesignating the existing text as 
paragraph (b), adding new paragraph (a), and adding a heading to 
paragraph (b) to read as follows:


Sec.  201.3  Applicability of regulations in this part.

    (a) Scope of sections 202(a) and (b) of the Act. The appropriate 
application of sections 202(a) and (b) of the Act depends on the nature 
and circumstances of the challenged conduct or action. A finding that 
the challenged conduct or action adversely affects or is likely to 
adversely affect competition is not necessary in all cases. Certain 
conduct or action can be found to violate sections 202(a) and/or (b) of 
the Act without a finding of harm or likely harm to competition.
    (b) Effective dates. * * *

Larry Mitchell,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 2016-30424 Filed 12-19-16; 8:45 am]
 BILLING CODE 3410-KD-P