[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Proposed Rules]
[Pages 92703-92723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30430]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / 
Proposed Rules  

[[Page 92703]]


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DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

9 CFR Part 201

RIN 0580-AB27


Unfair Practices and Undue Preferences in Violation of the 
Packers and Stockyards Act

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

ACTION: Proposed rule.

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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 proposing to amend the regulations issued under the 
Packers and Stockyards Act, 1921, as amended and supplemented (P&S 
Act). The proposed amendments will clarify 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) of the P&S Act. The proposed amendments will also 
identify criteria that 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) of the P&S Act.
    This proposed rule identifies the conduct or action that is a per 
se violation of section 202(a) of the P&S Act, includes an illustrative 
list of conduct or action, absent demonstration of a legitimate 
business justification, GIPSA believes is unfair, unjustly 
discriminatory, or deceptive and a violation of section 202(a) of the 
P&S Act regardless of harm to competition, and clarifies that any 
conduct or action that harms or is likely to harm competition is a 
violation of section 202(a) of the P&S Act. The proposed rule also 
includes criteria the Secretary will consider in determining whether 
conduct or action constitutes an undue or unreasonable preference or 
advantage and a violation of section 202(b) of the P&S Act.

DATES: We will consider comments we receive by February 21, 2017.

ADDRESSES: We invite you to submit comments on this proposed 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 2542A-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. 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 
received will be included in the public docket without change, 
including any personal information provided. 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:

Background on Prior Proposed Rule

    In June 2010, GIPSA proposed a new regulation designated as Sec.  
201.210. Paragraph (a) in that regulation introduced a list of examples 
of conduct that GIPSA considered unfair, unjustly discriminatory, or 
deceptive under section 202(a) of the P&S Act. GIPSA intended the first 
seven examples in the list to exemplify conduct that would violate 
section 202(a) regardless of proof of harm or likely harm to 
competition. The seven (7) examples proposed were as follows: (1) An 
unjustified material breach of a contractual duty or an action or 
omission that a reasonable person would consider unscrupulous, 
deceitful, or in bad faith in connection with any transaction in or 
contract involving the production, maintenance, marketing or sale of 
livestock or poultry; (2) a retaliatory action or omission, such as 
coercion, intimidation, or disadvantage, by a packer, swine contractor, 
or live poultry dealer in response to the lawful expression, 
association, or action of a poultry grower, livestock producer, or 
swine production contract grower; (3) a refusal to provide to a poultry 
grower or swine production contract grower statistical information and 
data (e.g., feed conversion rates, feed analysis, and origin and 
breeder history) used to determine compensation paid under a production 
contract; (4) an action or attempt to limit by contract a poultry 
grower, swine production contract grower, or livestock producer's legal 
rights and remedies afforded by law; (5) paying premiums or applying 
discounts on a swine production contract grower's payment or the 
purchase price received by the livestock producer from the sale of 
livestock without documenting the reason and substantiating the revenue 
and cost justification associated with the premium or discount; (6) 
terminating a poultry growing arrangement or a swine production 
contract based only on allegations that the poultry grower or swine 
production contract grower failed to comply with an applicable law, 
rule or regulation; and (7) a representation, omission or practice that 
is fraudulent or likely to mislead a reasonable poultry grower, swine 
production contract grower, or livestock producer regarding a material 
condition or term in a contract or business transaction. These seven 
(7) examples of conduct were followed by one last example, number eight 
(8), that read, ``Any act that causes competitive injury or creates a 
likelihood of competitive injury.''
    Comments in opposition to proposed Sec.  201.210 argued that the 
regulation was unclear, vague, and ambiguous. Some questioned whether 
the lack of clarity would make it impossible to determine whether a 
company was behaving in compliance with Sec.  201.210. Other comments 
questioned whether it allowed for a balancing of interests. As

[[Page 92704]]

a result of the comments, GIPSA has restructured and revised proposed 
Sec.  201.210.

Summary of Changes From the 2010 Proposed Rule

    In this new proposed rule, GIPSA restructured Sec.  201.210 into 
three paragraphs designated by letters (a) through (c). Paragraph (a) 
addresses ``per se'' violations of section 202(a), which are those 
behaviors specifically identified with the P&S Act as unfair, unjustly 
discriminatory, or deceptive practices or devices. A delay in payment 
or attempt to delay payment for livestock purchases by a market agency, 
dealer, or packer is specifically identified as an ``unfair practice'' 
in Section 409(c) of the P&S Act. When a packer violates section 409(c) 
of the P&S Act (7 U.S.C. 228b), the conduct is also a ``per se'' 
violation of section 202(a) of the P&S Act. Likewise, delays in payment 
or attempts to delay payment by a live poultry dealer are ``per se'' 
violations because such conduct is identified as an ``unfair practice'' 
in section 410(b) of the P&S Act (7 U.S.C. 228b-1). Paragraph (b) 
provides a list of examples of conduct or action that absent 
demonstration of a legitimate business justification, GIPSA considers 
as unfair, unjustly discriminatory, or deceptive and a violation of 
section 202(a) of the P&S Act whether or not the conduct harms or is 
likely to harm competition. Paragraph (c) states that any conduct or 
action that harms or is likely to harm competition is unfair, unjustly 
discriminatory, or deceptive and is a violation of section 202(a).
    Proposed Sec.  201.210 is consistent with USDA's long held position 
that a showing of harm or likely harm to competition is not required 
for all violations of section 202(a) of the P&S Act and with the scope 
of section 202(a) as set forth in the aforementioned interim final 
rule, Sec.  201.3(a), which also appears in this edition of the Federal 
Register.
    GIPSA is proposing Sec.  201.210(a) to affirmatively assert that 
any conduct or action by a packer, swine contractor, or live poultry 
dealer that the P&S Act explicitly deems to be unfair, unjustly 
discriminatory, or deceptive is a violation of section 202(a) without a 
showing of harm or likely harm to competition. Examples of such conduct 
or action that would fall under this section are in sections 409(c) and 
410(b) of the P&S Act, which state that a packer and live poultry 
dealer, respectively, have engaged in an ``unfair practice'' when they 
fail to pay timely for livestock or poultry.
    GIPSA is proposing Sec.  201.210(b) as a non-exhaustive list of the 
types of conduct or action that GIPSA believes is unfair, unjustly 
discriminatory, or deceptive and a violation of section 202(a) of the 
P&S Act regardless of whether the conduct harms or is likely to harm 
competition. Neither the P&S Act nor the regulations have ever 
specifically defined the terms ``unfair,'' ``unjustly discriminatory,'' 
or ``deceptive.'' This list is intended to reduce confusion regarding 
conduct that is unfair, unjustly discriminatory, or deceptive, without 
harming or the likelihood of harming competition. This list provides a 
sufficient number of examples to convey an understanding of this 
category of conduct and is not intended to list all conduct that would 
fit this category. These examples are violations if there is no 
legitimate business justification for the conduct. Legitimate business 
justifications would allow certain conduct that otherwise would be 
deemed a violation of section 202(a).
    Proposed Sec.  201.210(b)(1) identifies retaliatory action or 
threat of retaliatory action by a packer, swine contractor or live 
poultry dealer as violations of section 202(a) when done in response to 
lawful communication, association, or assertion of rights by a 
livestock producer, swine production contract grower, or poultry 
grower. The threat of terminating a contract in retaliation for some 
action may be sufficient unfair conduct to violate the P&S Act. These 
retaliatory acts or threats of retaliatory action may be directed 
toward a single grower or small group of growers, causing them harm, 
but not having significant effects on competition. For this reason, we 
propose to include both ``retaliatory action'' and the ``threat of 
retaliatory action'' in proposed Sec.  201.210(b)(1), as an example of 
conduct or action that is unfair, unjustly discriminatory, or deceptive 
and a violation of section 202(a) of the P&S Act regardless of whether 
the conduct harms or is likely to harm competition.
    Proposed Sec.  201.210(b)(2) identifies conduct or action that 
attempts to contractually limit the legal rights or remedies afforded 
by law to a livestock producer, swine production contract grower, or 
poultry grower as unfair, unjustly discriminatory or deceptive in 
violation of section 202(a) of the P&S Act. This proposed paragraph 
only contains an illustrative list of examples of such conduct or 
action limiting the legal contractual rights and remedies afforded to 
livestock producers, swine production contract growers, or poultry 
growers. This list is intended to provide a sufficient number of 
examples of the types of legal rights and remedies intended to be 
protected under this section. It is an illustrative list and is not 
intended to list all applicable legal rights and remedies.
    Under proposed Sec.  201.210(b)(2)(i), GIPSA considers conduct or 
action that contractually limits a livestock producer, swine production 
contract grower, or poultry grower's right to a trial by jury as 
unfair, unjustly discriminatory, or deceptive and a violation of 
section 202(a) of the P&S Act. Proposed Sec.  201.210(b)(2)(i) provides 
for an exception when the livestock producer, swine production contract 
grower, or poultry grower has agreed to be bound by arbitration 
provisions in a contract that complies with Sec.  201.218(a) and that 
provides a meaningful opportunity to participate fully in the 
arbitration process after applying the criteria outlined in Sec.  
201.218(b).
    The 2008 Farm Bill added section 209, Choice of Law and Venue, to 
the P&S Act. Section 209(a) provides that the forum to resolve any 
dispute among the parties to a poultry growing arrangement or swine 
production or marketing contract that arises out of that arrangement or 
contact must be located in the Federal judicial district where the 
principal part of the performance took place. GIPSA is proposing to add 
Sec.  201.210(b)(2)(ii), which makes clear that requiring a trial, 
arbitration, or other means of dispute resolution to be held in a 
location other than the Federal judicial district where a grower or 
producer performs their contractual obligations is unfair and a 
violation of Sec.  202(a) of the P&S Act. Due to differences in 
resources between the live poultry dealer, swine contractor or packer 
and the poultry grower, swine production contract grower or livestock 
producer, the growers and producers are at a disadvantage if required 
to travel great distances to resolve disputes. This conduct has the 
potential to impact a single grower or producer or a small group of 
growers or producers without harming competition. This proposed 
regulation interprets and implements a statutory requirement that does 
not include a harm to competition component.
    Under proposed Sec. Sec.  201.210(b)(2)(iii) and (iv), GIPSA 
considers any conduct or action that contractually limits a livestock 
producer's, swine production contract grower's, or poultry grower's 
right to pursue all damages available under applicable law, or right to 
seek an award of attorney fees, if such an award is available, under 
applicable law, respectively, as unfair, unjustly discriminatory, or 
deceptive in violation

[[Page 92705]]

of section 202(a) of the P&S Act. Livestock producers, swine production 
contract growers, and poultry growers commonly have little or no 
opportunity to negotiate the terms of their contracts with packers, 
swine contractors, and live poultry dealers. The livestock producers, 
swine production contract growers, and poultry growers are offered a 
contract and are typically expected to accept the terms as offered. If 
the livestock producer, swine production contract grower, or poultry 
grower has assumed considerable debt to finance their farming 
operation, the producer or grower may feel they have no choice but to 
accept the terms as offered. GIPSA believes that it is unfair, unjustly 
discriminatory or deceptive to limit a producer or grower from 
recovering damages that would otherwise be available, but for the 
limitations in the contract.
    Proposed Sec. Sec.  201.210(b)(3) through (7) identify the failure 
to act in compliance or in accordance with other specified regulations 
as conduct or action that is unfair, unjustly discriminatory, or 
deceptive and a violation of section 202(a) of the P&S Act. Section 
201.210(b)(3) clarifies that failing to comply with the requirements of 
Sec.  201.100 is unfair, unjustly discriminatory or deceptive in 
violation of section 202(a) of the P&S Act. Regulation Sec.  201.100 
specifies certain information and notices that must be provided to 
poultry growers. The live poultry dealer has control over most, if not 
all, of the information relevant to the grower's operations. This 
information is critical to the grower in operating his or her business 
and places the grower at a great disadvantage without this information. 
The 2008 Farm Bill directed GIPSA to, among other things, promulgate 
regulations establishing criteria the Secretary will consider in 
determining: (1) Whether a live poultry dealer has provided reasonable 
notice to poultry growers of any suspension of the delivery of birds 
under a poultry growing arrangement; (2) when a requirement of 
additional capital investments over the life of a poultry growing 
arrangement or swine production contract constitutes a violation of the 
P&S Act; (3) whether a live poultry dealer or swine production 
contractor has provided a reasonable period of time for a poultry 
grower or a swine production contract grower to remedy a breach of 
their arrangement or contract that could lead to the termination of the 
poultry growing arrangement or swine production contact; and (4) 
whether the arbitration process provided in a contract provides a 
grower or producer a meaningful opportunity to participate fully in the 
arbitration process. As directed by the 2008 Farm Bill, GIPSA published 
the regulations establishing the criteria in a final rule on December 
9, 2011 [76 FR 76874]. The regulations are codified in 9 CFR part 201 
as 9 CFR 201.215,\1\ 201.216, 201.217 and 201.218, respectively. These 
criteria, when applied, allow the Secretary to determine whether 
certain conduct has occurred, specifically whether reasonable notice of 
suspension of delivery of birds has been given (201.215), whether 
requiring additional capital investments violates the Act (201.216), 
whether a reasonable period of time has been given to remedy a breach 
of contract (201.217), and whether the grower or producer is given the 
option to decline arbitration and provided a meaningful opportunity to 
participate in the arbitration process if they so choose (201.218). 
After applying the criteria in each of these four (4) regulations, the 
Secretary could determine that a violation of the P&S Act has occurred. 
This proposed regulation makes clear that such violations are 
considered unfair, unjustly discriminatory or deceptive in violation of 
section 202(a) of the P&S Act.
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    \1\ The criteria regarding suspension of delivery of birds Sec.  
201.215 included ``(a) Whether a live poultry dealer provides a 
grower written notice at least 90 days prior to the date it intends 
to suspend the delivery of birds under a poultry growing 
arrangement''. This criterion was rescinded effective February 5, 
2015 [80 FR 6430].
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    Existing regulations under the P&S Act govern the weighing of 
livestock, poultry, and feed (Sec. Sec.  201.55, 201.71, 201.72, 
201.73, 201.73-1, 201.76, 201.82, 201.99, 201.108-1). The regulations 
at Sec.  201.71 also address the proper use of carcass merit evaluation 
systems and devices. Packers, swine contractors, and live poultry 
dealers use sophisticated scales and electronic devices to determine 
weight and quality characteristics of live animals and carcasses. The 
weights and quality measurements are used in formulas that determine 
payment to livestock producers and poultry growers. Failure to properly 
use these devices can affect producer and grower payment. GIPSA has 
always considered inaccurate weighing and the use of inaccurate scales 
to be unfair conduct. This proposed rule sets forth GIPSA's position on 
these practices as unfair, unjustly discriminatory or deceptive in 
violation of section 202(a) of the P&S Act.
    The regulations regarding the weighing of livestock, poultry, and 
feed require that packers, swine contractors, and live poultry dealers 
properly install, maintain, inspect, and operate scales to ensure 
livestock producers, swine production contract growers, and poultry 
growers are paid on accurate weights. Inaccurate weighing and 
inaccurate scales can have a significant impact on a poultry grower or 
livestock producer. Even slight inaccuracies can result in large 
financial losses when applied over an entire flock or large number of 
livestock. GIPSA considers, and now proposes for clarification, the 
failure to accurately weigh poultry and livestock to be a violation of 
section 202(a) of the P&S Act.
    In 2014, GIPSA incorporated by reference applicable requirements of 
the 2013 edition of the National Institute of Standards and Technology 
(NIST) Handbook 44. The referenced requirements include standards for 
livestock, meat, and poultry evaluation systems and/or devices. These 
standards reference specifications established by the American Society 
for Testing Materials (ASTM) International. By incorporating the 
standards in Handbook 44, GIPSA requires regulated entities to comply 
with the standards. Misuse of these systems and devices or use of 
inaccurate devices can cause significant harm to a single producer or 
group of producers without necessarily harming competition. GIPSA 
considers such harm to producers unfair, unjustly discriminatory or 
deceptive in violation of section 202(a) of the P&S Act. GIPSA is 
therefore proposing to add, as a final example of an unfair practice 
that violates section 202(a) of the P&S Act that does not require a 
showing of harm or likely harm to competition, a failure to ensure 
accurate evaluation systems or devices at Sec.  201.210(b)(9).
    The specific conduct listed in this proposed rule violates section 
202(a) of the P&S Act regardless of whether the conduct or action harms 
or is likely to harm competition. This list does not imply that conduct 
that harms competition or is likely to harm competition would not also 
violate the P&S Act. To make this clear, GIPSA is proposing to add 
Sec.  201.210(c), which clarifies that, absent demonstration of a 
legitimate business justification, 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) of the P&S Act. However, nothing in this provision 
would apply to mergers and acquisitions by packers, swine contractors, 
or live poultry dealers.
    Section 11006(1) of the 2008 Farm Bill directed GIPSA to amend the

[[Page 92706]]

regulations under the P&S Act to establish criteria that the Secretary 
will consider in determining whether an undue or unreasonable 
preference or advantage has occurred in violation of the P&S Act. In 
June 2010, GIPSA published a proposed rule, which included a new 
regulation addressing this Congressional mandate, Sec.  201.211.
    Throughout the history of the P&S Act, an ``undue or unreasonable 
preference or advantage'' has been determined according to the facts of 
each case within the purposes of the P&S Act. In proposed Sec.  
201.211, GIPSA proposed the following three (3) criteria the Secretary 
could consider to determine if an undue or unreasonable preference or 
advantage, or an undue or unreasonable prejudice or disadvantage, had 
occurred in violation of the P&S Act: (1) Whether contract terms based 
on number, volume or other condition, or contracts with price 
determined in whole or in part by the volume of livestock sold are made 
available to all poultry growers, livestock producers or swine 
production contract growers who individually or collectively meet the 
conditions set by the contract; (2) whether price premiums based on 
standards for product quality, time of delivery and production methods 
are offered in a manner that does not discriminate against a producer 
or group of producers that can meet the same standards; and (3) whether 
information regarding acquiring, handling, processing, and quality of 
livestock is disclosed to all producers when it is disclosed to one or 
more producers.
    Many commenters supported proposed Sec.  201.211 and specifically 
the criterion related to contract terms based on number, volume or 
other conditions. These commenters saw this section as a way to address 
potential disadvantages to small and medium-scale producers.
    GIPSA received several comments expressing concerns regarding the 
practicality of the proposed criteria on contract distribution by the 
packer, swine contractor, or live poultry dealer to all livestock 
producers, swine production contract growers, or live poultry dealers. 
Some commenters also expressed a concern with the ambiguity and lack of 
clarity in certain criteria.
    Many commenters expressed concerns that the proposed criterion 
related to price premiums and related types of contracts would have the 
unintended consequence of either directly or indirectly eliminating 
alternative marketing arrangements (AMA) Livestock producers use AMAs 
to market their livestock to a packer at least 14 days prior to 
slaughter under a verbal or written agreement. Many commenters opined 
that the proposed regulations would increase the potential for 
litigation thereby jeopardizing the continued use of these 
arrangements. The rapid growth of value-added segments of the livestock 
industry (e.g., breed certifications, source verification, and 
production method certification) has benefitted many producers and 
supported consumer demand. GIPSA did not intend to limit the use of 
AMAs. Commenters also expressed concern about privacy issues in 
disclosing information regarding acquiring, handling, processing, and 
quality of livestock to all producers as discussed in proposed Sec.  
201.211(c). In response to the comments, GIPSA has revised proposed 
Sec.  201.211. We do not intend for the current proposed provisions to 
affect value-added production and premiums, but commenters are 
encouraged to explain any concerns about how the proposed text will 
affect value-added production and how we might alter our rule to 
correct that.
    In this new proposed rule, GIPSA would add new Sec.  201.211, 
``Undue or unreasonable preferences or advantages,'' which is 
consistent with Congress' instruction to the Secretary in the 2008 Farm 
Bill. The proposed regulation identifies five criteria the Secretary 
will consider in determining whether an undue or unreasonable 
preference or advantage has occurred in violation of the P&S Act. This 
list is not exhaustive and other criteria may be considered depending 
on the circumstances of a particular situation.
    In response to concerns raised in comments received in 2010 about 
ambiguity and clarity, GIPSA deleted the criterion regarding contract 
terms based on number, volume, or other conditions. The originally 
proposed criteria related to price premiums and disclosing information 
have also been deleted. Additionally, we propose to add criteria 
addressing types of conduct considered to be favorable toward some 
producers and growers as compared to others.
    Under proposed Sec.  201.211(a), the Secretary will consider 
whether a packer, swine contractor, or live poultry dealer treats one 
or more livestock producers, swine production contract growers, or 
poultry growers more favorably as compared to others similarly situated 
who have engaged in lawful communication, association, or assertion of 
their rights. Producers and growers are entitled to exercise their 
rights of speech and association, such as forming or joining a contract 
growers' union, without fear of experiencing disparate treatment. 
Packers, swine contractors or live poultry dealers who treat some 
producers and growers more favorably than producers or growers who 
choose to exercise their rights are giving an undue preference or 
advantage to a group of producers or growers to the detriment of 
others. GIPSA believes this conduct violates section 202(b) of the P&S 
Act and is proposing this regulation to clarify its position.
    Under proposed Sec.  201.211(b), the Secretary will consider 
whether a packer, swine contractor, or live poultry dealer treats one 
or more livestock producers, swine production contract growers, or 
poultry growers more favorably as compared to others similarly situated 
who the packer, swine contractor, or live poultry dealer contend have 
taken an action or engaged in conduct that violates any applicable law, 
rule or regulation related to the livestock or poultry operation 
without a reasonable basis to determine that the livestock producer, 
swine production contract grower, or poultry grower committed the 
violation. GIPSA has become aware of situations in which a packer, 
swine contractor, or live poultry dealer has terminated a contract with 
a producer or grower based on an allegation that some law or regulation 
was violated. For example, a live poultry dealer might terminate a 
poultry grower's contract on the basis that the live poultry dealer 
believes the poultry grower violated some aspect of the Clean Water 
Act. Unless there is some reasonable basis for such a determination, 
such as a finding by a government agency charged with enforcing the 
Clean Water Act, GIPSA believes treating growers differently under 
these circumstances would violate the prohibition of section 202(b) 
against giving undue preferences or advantages to some producers and 
growers as compared to other producers and growers.
    Under proposed Sec.  201.211(c), the Secretary will consider 
whether a packer, swine contractor, or live poultry dealer treats one 
or more livestock producers, swine production contract growers, or 
poultry growers more favorably as compared to others similarly situated 
for an arbitrary reason unrelated to the livestock or poultry 
operation. This is necessary to prevent disparate treatment for any 
reason unrelated to the sale or production of livestock or poultry. If 
the packer, swine contractor, or live poultry dealer demonstrates a 
legitimate business reason for the action, the action would not violate 
section 202(b) of the P&S Act.
    Under proposed Sec.  201.211(d), the Secretary will consider 
whether a packer, swine contractor, or live poultry

[[Page 92707]]

dealer treats one or more livestock producers, swine production 
contract growers, or poultry growers more favorably as compared to 
others similarly situated on the basis of race, color, national origin, 
sex, religion, age, disability, political beliefs, sexual orientation, 
or marital or family status. Disparate treatment due to any of these 
bases could constitute a violation of one or more person's civil 
rights. GIPSA considers conduct that treats some producers or growers 
more favorably than others or to the detriment of a producer or grower 
because of the producer's or grower's status as a member of a class to 
be prohibited conduct in violation of section 202(b) of the P&S Act.
    Finally under proposed Sec.  201.211(e), the Secretary will 
consider whether the packer, swine contractor, or live poultry dealer 
has demonstrated a legitimate business justification for conduct or 
action that may otherwise constitute an undue or unreasonable 
preference or advantage. A packer, swine contractor, or live poultry 
dealer may have a legitimate business reason for treating some 
livestock producers, swine production contract growers, or poultry 
growers more favorably. In evaluating the criteria proposed above, the 
Secretary will also consider the proffered justification for the 
conduct in determining whether the packer swine contractor, or live 
poultry dealer has violated section 202(b) of the P&S Act.

Required Impact Analyses

Executive Order 12866 and Regulatory Flexibility Act

    This rulemaking has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget. GIPSA is proposing to make two 
changes to the regulations. The first will help to clarify the types of 
conduct considered unfair, unjustly discriminatory, or deceptive in 
violation of Sec.  202(a) of the P&S Act. The second provides criteria, 
in response to requirements of the 2008 Farm Bill, to consider in 
determining whether a packer, swine contractor, or live poultry dealer 
has engaged in conduct resulting in an undue preference or advantage to 
one or more livestock producers or poultry growers in violation of 
Sec.  202(b) of the P&S Act. As a required part of the regulatory 
process, GIPSA prepared an economic analysis of proposed Sec. Sec.  
201.210 and 201.211. 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, and 201.211. GIPSA has revised the 2010 
versions of Sec. Sec.  201.210 and 201.211 and is now proposing new 
Sec. Sec.  201.210 and 201.211 and issuing Sec.  201.3(a) as an interim 
final rule. Section 201.3(a) states that certain 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. Section 
201.3(a) formalizes GIPSA's longstanding position that, in some cases, 
violations of sections 202(a) and 202(b) can be proven without 
demonstrating harm or likely harm to competition. Section 201.210, 
among other things, provides clarity to the industry regarding the 
conduct or action, absent demonstration of a legitimate business 
justification, that constitutes an unfair, unjustly discriminatory, or 
deceptive practice or device and a violation of section 202(a) 
regardless of harm to competition. Section 201.211 provides clarity to 
the industry regarding the conduct or action that constitutes an undue 
or unreasonable preference or advantage and a violation of section 
202(b) by establishing criteria that the Secretary will consider in 
making such a determination. GIPSA believes the proposed regulations 
will serve to strengthen the protection afforded the nation's livestock 
producers and growers while promoting fairness and equity among 
industry segments.
    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 ``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 include conduct or action that 
could be violations of section 202(a) of the P&S Act upon application 
and consideration of criteria contained within other specified 
regulations.
    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 
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.
    Sections 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. A 
discussion of contracting in these industries is, therefore, useful in 
explaining the need for these additional regulations.
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. Several provisions in 
Sec. Sec.  201.210 and 201.211 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 
establishes criteria the Secretary will consider in determining whether 
conduct or action by a packer, swine contractor, or live poultry dealer

[[Page 92708]]

constitutes an undue or unreasonable preference or advantage and a 
violation of section 202(b).
    The type of contracting varies among cattle, hogs, and poultry. 
Broilers, the largest segment of poultry, are almost exclusively grown 
under production contracts, in which the live poultry dealers own the 
birds and provide poultry growers with feed and medication to raise and 
care for the birds until they reach the desired market size. Poultry 
growers provide the housing, labor, water, electricity, fuel, and 
provide for waste removal. Cattle production contracts are 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 and over 40 percent of all hogs are grown under contractual 
arrangements. 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 swine production 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 last years that 
the Census of Agriculture has published data on commodities raised and 
delivered under production contracts as Table 1 shows.

           Table 1--Percentage of Poultry and Hog Raised and Delivered Under Production Contracts \2\
----------------------------------------------------------------------------------------------------------------
                             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 livestock 
producers market their livestock to a packer for slaughter under a 
verbal or written agreement. These are commonly referred to as 
Alternative Marketing Arrangements (AMA). 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 producer 
and packer agree on a pricing mechanism under AMAs, but usually not on 
a specific price.
---------------------------------------------------------------------------

    \2\ 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/.
---------------------------------------------------------------------------

    USDA's Agricultural Marketing Service (AMS) reports the number of 
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. Formula pricing methods and 
forward contracts are two forms of AMA contracts. Thus, the first two 
columns in Table 2 are cattle marketed under contract and the third 
column represents the spot market for fed cattle. The data in Table 2 
show that the contracting of cattle has increased 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.
---------------------------------------------------------------------------

    \3\ USDA's Agricultural Marketing Service. https://mpr.datamart.ams.usda.gov/menu.do?path=Products/Cattle/Weekly. 
Accessed on September 9, 2016.

                         Table 2--Percentage of Fed Cattle Sold by Type of Purchase \3\
----------------------------------------------------------------------------------------------------------------
                                                                                      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
----------------------------------------------------------------------------------------------------------------

    As previously discussed and illustrated in Table 1 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.
---------------------------------------------------------------------------

    \4\ USDA's Agricultural Marketing Service.
    \5\ Includes Packer Owned and Packer Sold, and Other Purchase 
Arrangements.
    \6\ Includes Swine Pork Market Formula, and Other Market 
Formula.

                            Table 3--Percentage of Hogs Sold by Type of Purchase \4\
----------------------------------------------------------------------------------------------------------------
                                                                       Other
                                                                     marketing
                              Year                                 arrangements     Formula \6\     Negotiated
                                                                        \5\
----------------------------------------------------------------------------------------------------------------
2005............................................................            39.3            49.7            11.0

[[Page 92709]]

 
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.
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 facilitate the smooth the flow 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).\7\ 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 cattle and hog markets and yielded 
economic benefits to consumers, livestock producers and packers.
---------------------------------------------------------------------------

    \7\ RTI International, 2007, GIPSA Livestock and Meat Marketing 
Study, Prepared for GIPSA.
---------------------------------------------------------------------------

    The RTI Study found that increased economic efficiencies came from 
less volatility in volume and more intensive use of production and 
processing facilities, meaning less capital, labor, and feed per pound 
of meat produced. Increased economic efficiencies also came 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 from getting meat with desired attributes. In 
turn, the consumer benefits increase livestock demand, which provides 
benefits to livestock 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, 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.\8\ 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.
---------------------------------------------------------------------------

    \8\ 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).
    \9\ MacDonald, James M. Technology, Organization, and Financial 
Performance in U.S. Broiler Production. USDA, Economic Research 
Service, June 2014.
    \10\ 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 \9\
----------------------------------------------------------------------------------------------------------------
                                                                                                   Can change to
                                                   Farms  (% of    Birds  (% of   Production  (%      another
   Integrators in grower's area \10\  (number)        total)          total)         of total)    integrator  (%
                                                                                                     of farms)
----------------------------------------------------------------------------------------------------------------
1...............................................            21.7            23.4            24.5               7

[[Page 92710]]

 
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.\11\ If live poultry dealers already possess some market 
power to force down prices for poultry growing services, some contracts 
can extend that power by raising the costs of entry for new 
competitors, or allowing for price discrimination.\12\
---------------------------------------------------------------------------

    \11\ 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.
    \12\ 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.\13\ The following table shows the level of concentration 
in the livestock and poultry slaughtering industries for 2005-2015.
---------------------------------------------------------------------------

    \13\ 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.
    \14\ 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 \14\
----------------------------------------------------------------------------------------------------------------
                                                     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

[[Page 92711]]

markets.\15\ 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.
---------------------------------------------------------------------------

    \15\ 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.\16\ 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 \17\ 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.
---------------------------------------------------------------------------

    \16\ United States Government Accountability Office. 
Concentration in Agriculture. GAO-09-746R. Enclosure II: Potential 
Effects of Concentration on Agricultural Commodity and Retail Food 
Prices.
    \17\ 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.\18\ The 
largest one percent of cattle farms sold about 51 percent of the cattle 
sold by all cattle farms.
---------------------------------------------------------------------------

    \18\ 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.\19\ 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 169 times the volume of the very 
largest feedlots.
---------------------------------------------------------------------------

    \19\ 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.\20\ 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.\21\ 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).\22\
---------------------------------------------------------------------------

    \20\ Ibid.
    \21\ A pig is a generic term for a young hog.
    \22\ 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.\23\ 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.
---------------------------------------------------------------------------

    \23\ 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

[[Page 92712]]

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 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.\24\
---------------------------------------------------------------------------

    \24\ 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 
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. 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. 
Moreover, even assuming that the market organization is efficient from 
a societal perspective, the disparity in bargaining power between the 
regulated entities and the producers from whom they purchase may lead 
to individual cases of unfair, unjustly discriminatory, deceptive, or 
undue or unreasonable prejudice or disadvantage that result in harm to 
individual producers but not harm to competition at a market level. 
Sections 201.210 and 201.211 promote fairness and equity for livestock 
producers, swine production contract growers, and poultry growers 
regardless of whether or not harm rises to the level of harm to 
competition.
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 considered thousands of 
comments before proposing the current versions of Sec. Sec.  201.210 
and 201.211. Many of the provisions that contributed to the costs 
estimated by the Informa Study and the Elam Study are not in the 
current proposed regulations. The following provisions were in the 2010 
rule, but are not in the currently proposed regulations.
     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).
    Additionally, GIPSA adjusted the rule proposed in 2010 to give live 
poultry dealers more flexibility in suspending the delivery of birds 
and requiring capital improvements and those adjustments are reflected 
in current Sec. Sec.  201.215 and 201.216, respectively, which were 
finalized in 2011 and modified in 2015. 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.\25\ However, these cost estimates were for all of the 
2010 proposed changes, many of which do not apply. The Informa Study 
estimated $133.4 million to be one-time direct costs resulting from 
rewriting contracts, additional record keeping, etc.\26\ In the study, 
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.
---------------------------------------------------------------------------

    \25\ Informa Economics, Inc. ``An Estimate of the Economic 
Impact of GIPSA's Proposed Rules,'' prepared for the National Meat 
Association, 2010, Tables 7 to 9, Pages 51 to 53.
    \26\ Ibid. Page 53
---------------------------------------------------------------------------

    Comments from the National Chicken Council included cost estimates 
prepared by Dr. Thomas E. Elam, President, FarmEcon LLC (the Elam 
Study).\27\ The Elam Study estimated that the entire 2010 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.\28\ The Elam Study identified $6 million as one-
time administrative costs. The study states that most of the costs 
would be indirect costs resulting from efficiency losses,\29\ while 
more than half of the costs estimated 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.
---------------------------------------------------------------------------

    \27\ See Elam, Dr. Thomas E. ``Proposed GIPSA Rules Relating to 
the Chicken Industry: Economic Impact.'' FarmEcon LLC, 2010.
    \28\ Ibid. Page 24
    \29\ Ibid. Page 24
---------------------------------------------------------------------------

    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

[[Page 92713]]

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,\30\ and the Elam Study expected live poultry 
dealers to evaluate each load of feed delivered to growers to avoid 
litigation.\31\
---------------------------------------------------------------------------

    \30\ Informa, page 30.
    \31\ Elam, page 18.
---------------------------------------------------------------------------

    The studies relied on interviews that queried the willingness of 
packers, swine contractors, or live poultry dealers to alter their 
business practices. The estimates, based on interviews, may overstate 
costs because the packers, swine contractors, live poultry dealers, and 
other stakeholders would face adjustment costs from the rule proposed 
in 2010 and had incentives to respond that they would discontinue 
current practices.
    There also may have been some confusion concerning GIPSA's 
administrative enforcement authority. The Informa Study indicated that 
75 percent of the costs of the rule proposed in 2010, were directly 
related to proposed Sec.  201.3(c) enabling a finding of a violation of 
sections 202(a) or (b) of the P&S Act without a finding of harm or 
likely harm to competition.\32\ However, with respect to packers buying 
livestock for the purpose of slaughter, proposed Sec.  201.3(c) would 
not cause a change with respect to GIPSA's enforcement activities. For 
several decades, GIPSA has brought administrative enforcement actions 
against packers for violations of the regulations under the P&S Act 
without demonstrating harm or likely harm to competition. It is only in 
the poultry industry that, with the exception of timely payment to 
growers (section 410), GIPSA does not have the authority to bring 
administrative enforcement actions. Though GIPSA has administratively 
enforced section 202(a) and/or 202(b) violations in the livestock 
industry without demonstrating harm or likely harm to competition, some 
federal courts have held that it is necessary to demonstrate harm or 
likely harm to competition in some livestock cases and in many poultry 
cases.
---------------------------------------------------------------------------

    \32\ Informa, page 71.
---------------------------------------------------------------------------

    Given the changes made in response to comments, GIPSA does not 
expect that either new proposed Sec.  201.210 or new proposed Sec.  
201.211 will cause packers to reduce their use of AMAs.
Cost-Benefit Analysis of Proposed Sec. Sec.  201.210 and 201.211
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 identified potential alternatives.\33\ 
GIPSA considered three regulatory alternatives. The first alternative 
that GIPSA considered was to maintain the status quo and not propose 
the regulations. The second alternative that GIPSA considered was 
revising the versions of Sec. Sec.  201.210 and 201.211 that were 
published in 2010 and proposing new versions. This is GIPSA's preferred 
alternative as will be explained below. The third alternative that 
GIPSA considered was proposing new versions of Sec. Sec.  201.210 and 
201.211, but instituting a phased implementation of the proposed 
regulations. Under this alternative, proposed Sec. Sec.  201.210 and 
201.211 would only take effect when a written or verbal livestock 
marketing, swine growing, or poultry growing contract expires, is 
replaced, or is modified. The costs and benefits of these alternatives 
are discussed in order below.
---------------------------------------------------------------------------

    \33\ See section 6(a)(3)(C) of Executive Order 12866.
---------------------------------------------------------------------------

Regulatory Alternative 1: Status Quo
    If Sec. Sec.  201.210 and 201.211 are never finalized, there are no 
marginal costs and marginal benefits as industry participants will not 
alter their conduct. This alternative would not address the 2008 Farm 
Bill requirement to promulgate regulations establishing criteria the 
Secretary would consider in determining whether an undue or 
unreasonable preference or advantage has occurred in violation of the 
P&S Act, nor would it connect the criteria established in 2011 to a 
violation of the P&S Act. From a cost standpoint, this alternative 
costs the least as 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.
Regulatory Alternative 2: The Preferred Alternative
A. Cost Estimation of the Preferred Alternative
    GIPSA believes that the costs of Sec. Sec.  201.210 and 201.211 
will mostly consist of the costs of reviewing and re-writing marketing 
and production contracts to ensure that packers, swine contractors, and 
live poultry dealers are not engaging in conduct or action that is 
unfair, unjustly discriminatory, or deceptive or that in any way gives 
an undue or unreasonable preference or advantage to any livestock 
producer, swine production contract grower, or poultry grower or 
subjects any livestock producer, swine production contract grower, or 
poultry grower to an undue or unreasonable prejudice or disadvantage.
    Sections 201.210 and 201.211 do not impose any new requirements and 
mainly serve as guidance for compliance with sections 202(a) and 
202(b). GIPSA does not expect the proposed regulations will result in a 
decrease in the use of AMAs or other incentive payment systems, or 
decreased efficiencies in the cattle, hog, and poultry industries. The 
only indirect costs that GIPSA anticipates are the effects of the 
increase in administrative costs on supply and demand and the resulting 
quantity and price impacts on the retail markets for beef, pork, and 
chicken and the related input markets for cattle, hogs, and broilers.
    To estimate costs, GIPSA divided costs into two major categories, 
direct and indirect costs. GIPSA expects the direct costs to be 
comprised of administrative costs. Administrative costs for regulated 
entities include items such as review of marketing and production 
contracts, additional record keeping, and all other associated 
administrative office work to demonstrate that they are not engaging in 
conduct or action that is unfair, unjustly discriminatory, or deceptive 
or that in any way gives an undue or unreasonable preference or 
advantage to any livestock producer, swine production contract grower, 
or poultry grower or subjects any livestock producer, swine production 
contract grower, or poultry grower to an undue or unreasonable 
prejudice or disadvantage.
    Indirect costs include costs caused by changes in supply and/or 
demand in the markets for beef, pork, and chicken and the related input 
markets for cattle, hogs, and poultry resulting from the proposed rule.
1. Direct Costs--Administrative Costs of the Preferred Alternative
    To estimate administrative costs of the proposed rule, GIPSA relied 
on its experience reviewing contracts and other business records 
commonly maintained in the livestock and poultry industries for 
compliance with the P&S Act and regulations. GIPSA has data on the 
number of production contracts between swine production contract 
growers and swine contractors and poultry growers and live poultry 
dealers. GIPSA estimated the number of

[[Page 92714]]

marketing contracts between producers and packers based on the number 
of feedlots and the percentage of livestock procured under AMAs. GIPSA 
then multiplied the hourly estimates of the administrative functions of 
reviewing and revising contracts by the average annual wages to arrive 
at the total estimated administrative costs for implementation of 
Sec. Sec.  201.210 and 201.211. Since packers, swine contractors, and 
live poultry dealers have to review their contracts to ensure that they 
are not engaging in conduct or action that is unfair, unjustly 
discriminatory, or deceptive or that in any way gives an undue or 
unreasonable preference or advantage to any livestock producer, swine 
production contract grower, or poultry grower or subjects any livestock 
producer, swine production contract grower, or poultry grower to an 
undue or unreasonable prejudice or disadvantage, GIPSA estimates that 
the regulated entities will only review the contract once and split the 
contract review time between the two regulations.
    Based on GIPSA's experience, it developed time estimates for the 
number of hours for attorneys and company managers to review and revise 
marketing and production contracts and for staff to make changes, copy, 
and obtain signed copies of the contracts. For poultry contracts, GIPSA 
estimates that each unique contract type would require 12 hours of 
attorney time to review and rewrite a contract, 20 hours of company 
management time, and for each individual contract, 4 hours of 
administrative time, and 6.5 hours of additional record keeping time. 
GIPSA estimates that each of the 133 live poultry dealers who report to 
GIPSA rely on 10 unique contract types on average. For cattle marketing 
contracts, GIPSA estimates that each contract would require 4 hours of 
attorney time to review and rewrite a contract, 4 hours of company 
management time, 2 hours of administrative time, and 8 hours of 
additional record keeping time. For hog production and marketing 
contracts, GIPSA estimates that each contract would require 2 hours of 
attorney time to review and rewrite a contract, 2 hours of company 
management time, 1 hour of administrative time, and 6.5 hours of 
additional record keeping time.
    GIPSA multiplied estimated hours to conduct these administrative 
tasks by the average hourly wages for managers at $58/hour, attorneys 
at $83/hour, and administrative assistants at $34/hour as reported by 
the U.S. Bureau of Labor Statistics in its Occupational Employment 
Statistics to arrive at its estimate of contract review costs for 
regulated entities.\34\
---------------------------------------------------------------------------

    \34\ All salary costs are based on mean annual 2015 salary 
adjusted for benefit costs, set to an hourly basis. http://www.bls.gov/oes/. Accessed on August 26, 2016.
---------------------------------------------------------------------------

    GIPSA recognizes that contract review costs will also be borne by 
livestock producers, swine production contract growers, and poultry 
growers. GIPSA estimates that each livestock producer, swine production 
contract grower, and poultry grower will spend two hours of time 
reviewing a contract and will spend two hours of their attorney's time 
to review the contract. GIPSA multiplied two hours of livestock 
producer, swine production contract grower, and poultry grower time and 
two hours of attorney time to conduct the marketing and production 
contract review by the average hourly wages for attorneys at $83/hour 
and managers at $58/hour as reported by the U.S. Bureau of Labor 
Statistics in its Occupational Employment Statistics to arrive at its 
estimate of contract review costs for livestock producers, swine 
contract growers, and poultry growers. GIPSA then applied this cost to 
the estimated 2,355 cattle marketing contracts, 1,290 hog marketing 
contracts, 8,031 hog production contracts, and 21,925 poultry growing 
contracts that have been reported to GIPSA.
    After determining the administrative costs to both the regulated 
entities and those they contract with, GIPSA then added the 
administrative costs of the regulated entities and the livestock 
producers, swine production contract growers, and poultry growers 
together and subsequently split them in half to arrive at the first-
year total estimated administrative costs attributable to each of the 
two regulations. A summary of the first-year total estimated 
administrative costs for implementation of Sec. Sec.  201.210 and 
201.211 appear in the following table:

                  Table 6--First-Year Administrative Costs of Sec.  Sec.   201.210 and 201.211
                                    [Indirect costs include costs caused by:]
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hogs ($       Poultry ($       Total ($
                   Regulation                        millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
201.210.........................................            1.39            3.81            8.40           13.60
201.211.........................................            1.39            3.81            8.40           13.60
                                                 ---------------------------------------------------------------
    Total.......................................            2.79            7.61           16.79           27.19
----------------------------------------------------------------------------------------------------------------

    The first-year total administrative costs are $27.19 million and 
are the same for Sec. Sec.  201.210 and 201.211 for cattle, hogs, and 
poultry because packers, swine contractors, live poultry dealers, 
livestock producers, swine production contract growers, and poultry 
growers must conduct the same administrative functions of contract 
review and record keeping in response to both regulations. The 
administrative costs are the highest for poultry, followed by hogs and 
cattle. This is due to the greater prevalence of contract growing 
arrangements in the poultry industry.
2. Direct Costs--Litigation Costs of the Preferred Alternative
    Interim final regulation 201.3(a) will be in effect when Sec. Sec.  
201.210 and 201.211 become effective. GIPSA expects that Sec.  201.3(a) 
will result in additional litigation as this rule states that certain 
conduct or action can be found to violate sections 202(a) and/or 202(b) 
of the P&S Act without harm or likely harm to competition in all cases. 
Section 201.3(a) formalizes GIPSA's longstanding position that, in some 
cases, violations of sections 202(a) and 202(b) can be proven without 
demonstrating harm or likely harm to competition in all cases. Section 
201.210 provides clarity to the industry regarding the conduct or 
action, absent demonstration of a legitimate business justification 
that constitutes an unfair, unjustly discriminatory, or deceptive 
practice or device and a violation of section 202(a) regardless of harm 
to competition. Section 201.211 provides

[[Page 92715]]

clarity to the industry regarding the conduct or action that 
constitutes an undue or unreasonable preference or advantage and a 
violation of section 202(b) by establishing criteria that the Secretary 
will consider in making such a determination.
    Regulation 201.3(a) is broad in nature. Sections 201.210 and 
201.211 provide additional clarity. Thus, GIPSA considers the 
additional litigation under Sec.  201.3(a) to be the baseline 
litigation costs for Sec. Sec.  201.210 and 201.211 and that the 
litigation costs for Sec.  201.3(a) already include the litigation 
costs of Sec. Sec.  201.210 and 201.211. Since those litigation costs 
have already been counted under Sec.  201.3(a), GIPSA does not allocate 
any additional litigation costs to Sec. Sec.  201.210 and 201.211. For 
the purposes of this RIA, the marginal litigation costs of Sec. Sec.  
201.210 and 201.210 are zero.
3. Total Direct Costs of the Preferred Alternative
    The total first-year direct costs of Sec. Sec.  201.210 and 201.211 
are the sum of administrative and litigation costs from above and are 
summarized in the following table.

                            Table 7--Direct Costs of Sec.  Sec.   201.210 and 201.211
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hogs ($       Poultry ($       Total ($
                    Cost Type                        millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
Admin Costs.....................................            2.79            7.61           16.79           27.19
Litigation Costs................................            0.00            0.00            0.00            0.00
                                                 ---------------------------------------------------------------
    Total Direct Costs..........................            2.79            7.61           16.79           27.19
----------------------------------------------------------------------------------------------------------------

    GIPSA estimates that the total direct costs of proposed Sec. Sec.  
201.210 and 201.211 to be $27.19 million. As the above table shows, the 
costs are highest for the poultry industry, followed by hogs and 
cattle. The primary reason is the high utilization of growing contracts 
and the estimated higher administrative costs in the poultry industry.
4. Indirect Costs of the Preferred Option
    As previously discussed, GIPSA does not expect that proposed 
Sec. Sec.  201.210 and 201.211 will result in a decreased use of AMAs, 
use of grower ranking systems or other incentive pay, reduced capital 
formation, or decreased efficiencies in the meat and poultry industries 
because the regulations simply clarify conduct and action that are 
unfair, unjustly discriminatory, and deceptive and a violation of 
section 202(a) and clarify the conduct or action that constitutes an 
undue or unreasonable preference or advantage and a violation of 
section 202(b) by establishing criteria the Secretary will consider in 
making such a determination. The only indirect costs that GIPSA expects 
are the effects of the increase in total industry costs from the 
administrative costs on supply and demand, and the resulting quantity 
and price impacts of the retail markets for beef, pork, and poultry, 
and the related input markets for cattle, hogs, and poultry.
    GIPSA modeled the impact of the increase in total industry costs 
resulting from the direct costs of implementing Sec. Sec.  201.210 and 
201.211 in a Marketing Margins Model (MMM) framework.\35\ The MMM 
allows for the estimation of changes in consumer and producer surplus 
and the quantification of deadweight loss or gain caused by changes in 
supply and demand in the retail markets for beef, pork, and poultry and 
the input markets for cattle, hogs, and poultry.
---------------------------------------------------------------------------

    \35\ The framework is explained in detail in Tomek, W.G. and 
K.L. Robinson ``Agricultural Product Prices,'' third edition, 1990, 
Cornell University Press.
---------------------------------------------------------------------------

    GIPSA modeled the increases in industry costs resulting from higher 
direct costs as an inward (or upward) shift in the supply curves for 
beef, pork, and poultry. This has the effect of increasing the 
equilibrium prices and reducing the equilibrium quantity traded. This 
also has the effect of reducing the derived demand for cattle, hogs, 
and poultry, which causes a reduction in the equilibrium prices and 
quantity traded. Economic theory suggests that these shifts in the 
supply curves and derived demand curves and the resulting price and 
quantity impacts will result in a reduction in social welfare through a 
deadweight loss.
    To estimate the output and input supply and demand curves for the 
MMM, GIPSA constructed linear supply and demand curves around 
equilibrium price and quantity points using price elasticities of 
supply and demand from the GIPSA Livestock Meat and Marketing Study and 
from USDA's Economic Research Service.\36\
---------------------------------------------------------------------------

    \36\ RTI International ``GIPSA Livestock Meat and Marketing 
Study'' prepared for Grain Inspection, Packers and Stockyards 
Administration, 2007.
    ERS Price Elasticities: http://www.ers.usda.gov/data-products/commodity-and-food-elasticities/demand-elasticities-from-literature.aspx.
---------------------------------------------------------------------------

    GIPSA then shifted the supply curves for beef, pork, and chicken up 
by the amount of the increase in total cost for each industry and 
calculated the new equilibrium prices and quantities. GIPSA calculated 
the new equilibrium prices and quantities in the input markets 
resulting from the decreases in derived demand. GIPSA also calculated 
the resulting social welfare changes in the input and output markets 
for each industry.
    The calculation of the price impacts from the increases in industry 
costs from Sec. Sec.  201.210 and 201.211 resulted in price increases 
of approximately one-hundredth of a cent or less in retail prices for 
beef, pork, and poultry. This is because the increase in total industry 
costs is very small in relation to overall industry costs.\37\ The 
result is that the resulting deadweight losses from the increases in 
total industry costs are indistinguishable from zero and, therefore, 
GIPSA concludes that the indirect costs of Sec. Sec.  201.210 and 
201.211 for each industry are zero.
---------------------------------------------------------------------------

    \37\ The $27.19 million increase in total industry costs from 
Sec. Sec.  201.210 and 201.211 is only 0.02 percent of total 
industry costs of approximately $178 billion for the beef, pork, and 
poultry industries.
---------------------------------------------------------------------------

5. Total Costs of the Preferred Alternative
    GIPSA added all direct costs to the indirect costs (equal to zero), 
to arrive at the estimated total first-year costs of Sec. Sec.  201.210 
and 201.211. The total first-year costs are summarized in the following 
table.

[[Page 92716]]



                            Table 8--Total Costs of Sec.  Sec.   201.210 and 201.211
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hogs ($       Poultry ($       Total ($
                    Cost type                        millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
Admin Costs.....................................            2.79            7.61           16.79           27.19
Litigation Costs................................            0.00            0.00            0.00            0.00
Total Direct Costs..............................            2.79            7.61           16.79           27.19
Total Indirect Costs............................            0.00            0.00            0.00            0.00
                                                 ---------------------------------------------------------------
    Total Costs.................................            2.79            7.61           16.79           27.19
----------------------------------------------------------------------------------------------------------------

    GIPSA estimates that the total costs of Sec. Sec.  201.210 and 
201.211 will be $27.19 million in the first year of implementation.
6. Ten-Year Total Costs of the Preferred Option
    To arrive at the estimated ten-year costs of Sec. Sec.  201.210 and 
201.211, GIPSA expects the costs of the regulations to be constant for 
the first five years while courts are setting precedents for the 
interpretation of the regulations. GIPSA expects that case law with 
respect to the regulations will be settled after five years and by 
then, industry participants will know how GIPSA will enforce the 
regulations and how courts will interpret the regulations. Once courts 
establish precedents in case law, GIPSA expects the direct 
administrative costs of reviewing and revising contracts to decrease 
rapidly as contracts will already contain any language modifications 
necessitated by implementation of the regulations.
    To arrive at the estimated ten-year costs of Sec. Sec.  201.210 and 
201.211, GIPSA estimates that in the first five years, 20 percent of 
all contracts will either expire and need to be renewed each year or 
new marketing and production contracts will be put in place each year. 
As discussed above, GIPSA expects the costs of reviewing and revising 
contracts will remain constant in the first five years. However, the 
overall costs will be lower because the direct administrative costs of 
reviewing and revising contracts will only apply to the 20 percent of 
expiring contracts or new contracts. GIPSA estimates that in the second 
five years, the direct administrative costs of reviewing and revising 
contracts will decrease by 50 percent per year as the courts establish 
precedents and contracts already contain any language modifications 
necessitated by implementation of the regulations.
    The total ten-year costs of the regulations appear in the table 
below.

    Table 9--Ten-Year Total Costs of Sec.  Sec.   201.210 and 201.211
------------------------------------------------------------------------
                                                           Total direct
                          Year                             ($ millions)
------------------------------------------------------------------------
2018 \38\...............................................           27.19
2019....................................................            5.44
2020....................................................            5.44
2021....................................................            5.44
2022....................................................            5.44
2023....................................................            2.72
2024....................................................            1.36
2025....................................................            0.68
2026....................................................            0.34
2027....................................................            0.17
                                                         ---------------
  Totals................................................           54.21
------------------------------------------------------------------------

    Based on the analysis, GIPSA expects the ten-year total costs of 
Sec. Sec.  201.210 and 201.211 will be $54.21 million.
---------------------------------------------------------------------------

    \38\ GIPSA uses 2018 as the date for the proposed rule to be in 
effect for analytical purposes only. The date the proposed rule 
becomes final is not known.
---------------------------------------------------------------------------

7. Net Present Value of Ten-Year Total Costs of the Preferred 
Alternative
    The total costs of Sec. Sec.  201.210 and 201.211 in the table 
above show that the costs are highest in the first year, decline to a 
constant lower level over the next four years, and then gradually 
decrease again over the subsequent 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.
    To account for the time value of money, the costs of the 
regulations to be incurred in the future are 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.\39\ GIPSA measured all costs using constant 
dollars.
---------------------------------------------------------------------------

    \39\ https://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf.
---------------------------------------------------------------------------

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

    Table 10--NPV of Ten-Year Total Costs of Sec.  Sec.   201.210 and
                                 201.211
------------------------------------------------------------------------
                      Discount rate                        ($ millions)
------------------------------------------------------------------------
3 Percent...............................................           50.33
7 Percent...............................................           45.95
------------------------------------------------------------------------

    GIPSA expects the NPV of the ten-year total costs of Sec. Sec.  
201.210 and 201.211 will be $50.33 million at a three percent discount 
rate and $45.95 million at a seven percent discount rate.
8. Annualized Costs of the Preferred Alternative
    GIPSA then annualized the NPV of the ten-year total costs (referred 
to as annualized costs) of Sec. Sec.  201.210 and 201.211 using both a 
three percent and seven percent discount rate as required by Circular 
A-4 and the results appear in the following table.\40\
---------------------------------------------------------------------------

    \40\ Ibid.

     Table 11--Annualized Costs of Sec.  Sec.   201.210 and 201.211
------------------------------------------------------------------------
                      Discount rate                        ($ millions)
------------------------------------------------------------------------
3 Percent...............................................            5.90
7 Percent...............................................            6.54
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec. Sec.  201.210 and 
201.211 will be $5.90 million at a three percent discount rate and 
$6.54 million at a seven percent discount rate.
B. Impacts on Costs of Interim Final Sec.  201.3(a)
    Concurrent with proposing Sec. Sec.  201.210 and 201.211, GIPSA is 
issuing an interim final version of Sec.  201.3(a). 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. As a stand-alone regulation, Sec.  201.3(a) formalizes 
GIPSA's longstanding position that, in some cases, violations of 
sections 202(a) and 202(b) can be proven without

[[Page 92717]]

demonstrating harm or likely harm to competition.
    In its Regulatory Impact Analysis, GIPSA estimated the annualized 
costs of Sec.  201.3(a) to 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. The range of potential costs 
is broad and GIPSA relied on its expertise to arrive at a point 
estimate of expected annualized costs. GIPSA expects the cattle, hog, 
and poultry industries to primarily take a ``wait and see'' approach to 
how courts will interpret Sec.  201.3(a) and only slightly adjust its 
use of AMAs, and incentive or performance-based payment systems. GIPSA 
estimates that the annualized costs of Sec.  201.3(a) at the point 
estimate 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 by the cattle, hog, and poultry industries.
    GIPSA recognizes that courts, after the implementation of Sec.  
201.3(a), may opt to continue to apply earlier precedents of requiring 
the showing of harm or potential harm to competition in section 202(a) 
and 202(b) cases. This has the potential to affect the costs of 
Sec. Sec.  201.210 and 201.211 should they become finalized. GIPSA 
expects that even if courts continue to require showing of harm or 
potential harm to competition in section 202(a) and 202(b) cases, that 
firms will likely still incur costs of complying with Sec. Sec.  
201.210 and 201.211. Even if regulated entities expect that courts will 
require showing of a harm to competition for Sec. Sec.  201.210 and 
201.211 violations, the regulated entities may still expect litigation 
as private parties test the courts application of Sec.  201.3 as it 
relates to Sec. Sec.  201.210 and 201.211 violations. To reduce this 
threat of litigation, regulated entities may still incur the 
administrative costs detailed above. Should Sec. Sec.  201.210 and 
201.211 become finalized and courts still require a showing of harm or 
potential harm to competition, regulated entities may still voluntarily 
undertake the adjustment costs detailed above.
    GIPSA expects proposed Sec. Sec.  201.210 and 201.211 to reduce the 
costs of implementing Sec.  201.3 by providing more clarity in the 
appropriate application of sections 202(a) and (b) of the P&S Act. 
Section 201.210 provides illustrative examples of conduct or action, 
absent demonstration of a legitimate business justification, that GIPSA 
considers 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 provides 
criteria the Secretary will consider in determining whether conduct or 
action constitutes an undue or unreasonable preference or advantage and 
a violation of section 202(b).
C. Benefits of the Preferred Alternative
    GIPSA was unable to quantify the benefits of Sec. Sec.  201.210 and 
201.211. However, there are qualitative benefits of Sec. Sec.  201.210 
and 201.211 coupled with Sec.  201.3(a) that merit discussion.
    An important qualitative benefit of Sec.  201.210 coupled with 
Sec.  201.3(a) is the increased ability for the enforcement of the P&S 
Act for violations of 202(a) that do not result in harm or likely harm 
to competition. An illustrative example is the inaccurate weighing of 
live poultry grown to a target slaughter weight by a poultry grower 
under contract for a live poultry dealer. The weight of poultry is used 
as one factor to determine the payment to growers under most contract 
growing arrangements. The poultry grower is harmed if the true weight 
is more than the inaccurate weight used to compensate the poultry 
grower. The harm to the poultry grower is very small when compared to 
the entire industry and there is no discernible or provable harm to 
competition from this one instance. 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 
significant harm to competition. The individual harm is inconsequential 
to the industry, but the sum total of all individual harm has the 
potential to be quite significant when compared to the poultry 
industry. Under proposed Sec.  201.210(b)(8), failing to ensure 
accurate weights of live poultry, absent a legitimate business 
justification, will constitute unfair, unjustly discriminatory, or 
deceptive practices or devices 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.
    The sum of all individual harm is likely to increase total industry 
costs of producing beef, pork, and chicken due to inefficiencies 
through the production and marketing complex due to an inefficient 
allocation of resources. The costs of all unfair, unjustly 
discriminatory, or deceptive practices or devices are reflected in 
higher costs of producing cattle, hogs, and poultry at the producer/
grower level of the industry and of producing beef, pork, and chicken 
in the packing/wholesale level of the industry, with some portion of 
these costs passed along to consumers in the form of higher prices.
    GIPSA expects proposed Sec. Sec.  201.210 and 201.211 coupled with 
interim final Sec.  201.3(a) to increase enforcement actions against 
packers, swine contractors, and 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) 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 202(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 formalized its interpretation 
in a regulation. Section 201.3(a) addresses that issue and Sec. Sec.  
201.210 and 201.211 provide further clarity.
    GIPSA expects the successful litigation of enforcement actions 
brought under proposed Sec. Sec.  201.210 or 201.211 combined with 
interim final 201.3(a) to deter violations of sections 202(a) and (b). 
Successful deterrence will result in lower overall costs throughout the 
entire production and marketing complex of all livestock, poultry, and 
meat.
    Sections 201.210 and 201.211 also contain several provisions that 
GIPSA expects will improve efficiencies in the regulated markets for 
cattle, hogs, and poultry and reduce market failures. For regulations 
to improve efficiencies for market participants and generate benefits 
for consumers and producers, they must increase the amount of relevant 
information to market participants, protect private property rights, 
and foster competition.
    Section 201.210(b) will increase the amount of relevant information 
to market participants by providing notice to all market participants 
of specific 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) of the 
P&S Act regardless of whether the conduct or action harms or is likely 
to harm competition. Market participants will all know, for example, 
that absent demonstration of a legitimate business justification, 
retaliatory conduct and the

[[Page 92718]]

limiting, by contract, the legal rights and remedies afforded by law to 
livestock producers, swine production contract growers, or poultry 
growers is a violation of Sec.  201.210 and section 202(a) regardless 
of whether the conduct or action harms or is likely to harm 
competition. Additionally, market participants will all know that 
absent demonstration of a legitimate business justification, failure to 
ensure accurate scales and weights, and failing to ensure the accuracy 
of electronic evaluation systems and devices is a violation of Sec.  
201.210 and section 202(a) regardless of whether the conduct or action 
harms or is likely to harm competition. Ensuring the accuracy of 
weighing and grading devices serves to increase economic efficiency. 
Inaccurate weighing and grading reduces economic efficiency by 
effectively distorting per-unit prices and harms livestock producers, 
swine production contract growers, and poultry growers, even though the 
resulting harm may not have an overall effect on competition if the 
conduct is directed at only one livestock producer, swine production 
contract grower, or poultry grower.
    Similarly, Sec.  201.211 increases the amount of relevant 
information to market participants and offsets any potential abuse of 
market power by clearly stating to all contracting parties the criteria 
that the Secretary will consider in determining whether conduct or 
action constitutes an undue or unreasonable preference or advantage and 
a violation of 202(b) of the P&S Act.
    Both regulations may also serve to reduce the risk of violating 
sections 202(a) and 202(b) because they provide clarification to the 
livestock and poultry industries as to the conduct or action that, 
absent demonstration of a legitimate business justification, is unfair, 
unjustly discriminatory, or deceptive and violates section 202(a) of 
the Act regardless of whether the conduct or action harms or is likely 
to harm competition and the criteria that the Secretary will consider 
in determining whether conduct or action constitutes an undue or 
unreasonable preference or advantage and a violation of section 202(b) 
of the P&S Act. Less risk through the clarification provided in the 
regulations will likely foster competitiveness and fairness in 
contracting and provide protections for livestock producers, swine 
production contract growers, and poultry growers against unfair, 
unjustly discriminatory, and deceptive practices and devices and undue 
or unreasonable preferences or advantages.
    Benefits to the livestock and poultry industries and the cattle, 
hog, and poultry markets also arise from establishing parity of 
negotiating power between packers, swine contractors, and live poultry 
dealers and livestock producers, swine production contract growers, and 
poultry growers by reducing the ability to use market power with the 
resulting deadweight losses.\41\ Establishing parity of negotiating 
power in contracts promotes fairness and equity and is consistent with 
GIPSA's mission [t]o protect fair trade practices, financial integrity, 
and competitive markets for livestock, meats, and poultry.'' \42\
---------------------------------------------------------------------------

    \41\ 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, 
Florida, July 27-29, 2008.
    \42\ See additional discussion in Steven Y. Wu and James 
MacDonald (2015) ``Economics of Agricultural Contract Grower 
Protection Legislation,'' Choices 30(3): 1-6.
---------------------------------------------------------------------------

D. Cost-Benefit Summary of the Preferred Alternative
    GIPSA expects the annualized costs of Sec. Sec.  201.210 and 
201.211 will be $5.90 million at a three percent discount rate and 
$6.54 million at a seven percent discount rate. GIPSA expects the costs 
to be highest for the poultry industry due to its extensive use of 
poultry growing contracts, followed by the hog industry and the cattle 
industry, respectively.
    GIPSA was unable to quantify the benefits of the regulations, but 
explained numerous qualitative benefits that will protect livestock 
producers, swine production contract growers, and poultry growers from 
retaliation, promote fairness and equity in contracting, increase 
economic efficiencies, and reduce the negative effects of market 
failures throughout the entire livestock and poultry value chain. The 
primary benefit of Sec.  201.210 and Sec.  201.211 is the increased 
ability for the enforcement of the P&S Act for violations of sections 
202(a) and (b) that 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, unfair advantages 
and increased efficiencies in the marketplace. This 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.
Regulatory Alternative 3: Contract Duration--Phased Implementation
    GIPSA considered a third regulatory alternative of phased 
implementation. Under this third alternative, Sec. Sec.  201.210 and 
201.211 would only apply to marketing and production contracts when 
they expire, are altered, or new contracts are put in place. Consider 
for example, a poultry growing contract with three years remaining in 
the contract when the regulations become effective. The provisions of 
the regulations that apply to contracts would not be applicable to this 
contract until the contract expires after three years and is either 
renewed or replaced.
A. Cost Estimation of Phased Implementation
    GIPSA estimated the costs of phased implementation by multiplying 
the costs of Sec. Sec.  201.210 and 201.211 for the preferred 
alternative (Table 8) for each year of the first 10 years the 
regulations would be effective starting in 2018 by the percentage of 
contracts expiring or altered in the same year. USDA's Economic 
Research Service Agricultural Resource Management Surveys conducted in 
2003 and 2011 provided data about the length of hog and broiler 
production contracts. GIPSA relied on its knowledge of hog and cattle 
marketing contracts based on regular reviews of packer procurement 
practices to estimate contract lengths for hog and cattle marketing 
contracts. The data on contract length appear in the following table:
---------------------------------------------------------------------------

    \43\ USDA's Economic Research Service Agricultural Resource 
Management Survey (ARMS) 2011.
    \44\ USDA's Economic Research Service Agricultural Resource 
Management Survey (ARMS) 2003.

                              Table 12--Production and Marketing Contract Durations
----------------------------------------------------------------------------------------------------------------
                                                     Broilers          Hogs                           Cattle
                Contract duration                   production      production    Hogs marketing     marketing
                                                  \43\ (percent)  \44\ (percent)     (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Short Term <= 12 months.........................           65.20           40.50          100.00          100.00

[[Page 92719]]

 
Medium Term 13-60 months........................           19.20            3.50            0.00            0.00
Long Term > 60 months...........................           15.60           56.00            0.00            0.00
----------------------------------------------------------------------------------------------------------------

    The data in the table show that 65.2 percent of broiler production 
contracts have a duration of 12 months or less. GIPSA estimates that 
100 percent of all hog and cattle marketing contracts expire or are 
altered every 12 months or less. Even if the contracts do not expire, 
GIPSA expects changes every year to the base prices, premiums and 
discounts, lean percentages, etc. of hog and cattle marketing contracts 
and GIPSA would consider a change to any one of these items in the 
contract as an alteration to the contract, which would trigger the 
application of the new regulations.
    For the first year of the regulations, GIPSA multiplied the poultry 
costs of the regulations by 65.20 percent, the percentage of the hog 
costs attributable to hog production contracts by 40.5 percent, the 
percentage of the hog costs attributable to hog marketing contracts by 
100 percent, and the cattle costs by 100 percent. For years two through 
five, GIPSA followed the same procedure, but adjusted poultry and hog 
production costs by the number of contracts that are five years or 
less. For broilers, 84.4 percent are five years or less in duration and 
44 percent of all hog production contracts are five years or less years 
in duration. For years six through ten, GIPSA applied 100 percent of 
the preferred alternative costs to reflect full implementation costs.
    The following table shows the ten-year total costs for each year of 
the phased implementation alternative. The ten-year total costs for 
each year of the preferred alternative (Table 9) are also shown for 
convenience.

 Table 13--Phased Implementation Total Costs of Sec.  Sec.   201.210 and
                                 201.211
------------------------------------------------------------------------
                                             Preferred        Phased
                  Year                       option ($    implementation
                                             millions)     ($ millions)
------------------------------------------------------------------------
2018....................................           27.19           17.45
2019....................................            5.44            4.18
2020....................................            5.44            4.18
2021....................................            5.44            4.18
2022....................................            5.44            4.18
2023....................................            2.72            2.72
2024....................................            1.36            1.36
2025....................................            0.68            0.68
2026....................................            0.34            0.34
2027....................................            0.17            0.17
                                         -------------------------------
    Totals..............................           54.21           39.43
------------------------------------------------------------------------

    GIPSA estimates that the first-year total costs of Sec. Sec.  
201.210 and 201.211 under the phased implementation alternative will be 
$17.45 million and the ten-year total costs will be $39.43 million. As 
the table shows, the costs in the first five years are lower under the 
phased implementation alternative than under the preferred alternative 
because the regulations apply to fewer contracts until the time period 
in which all contracts are phased in.
B. NPV of Ten-Year Total Costs of Phased Implementation
    GIPSA calculated the NPV of the ten-year total costs of Sec. Sec.  
201.210 and 201.211 under phased implementation using both a three 
percent and seven percent discount rate and the NPVs are shown in the 
following table.

   Table 14--NPVs of Ten-Year Total Costs of Sec.  Sec.   201.210 and
                     201.211--Phased Implementation
------------------------------------------------------------------------
                      Discount rate                        ($ Millions)
------------------------------------------------------------------------
3 Percent...............................................           36.33
7 Percent...............................................           32.86
------------------------------------------------------------------------

    GIPSA expects the NPV of the ten-year total costs of Sec. Sec.  
201.210 and 201.211 under the phased implementation option to be $36.33 
million at a three percent discount rate and $32.86 million at a seven 
percent discount rate.
C. Annualized Costs of Phased Implementation
    GIPSA then annualized the costs of Sec. Sec.  201.210 and 201.211 
using both a three percent and seven percent discount rate as required 
by Circular A-4 and the results appear in the following table.

    Table 15--Annualized Costs of Regulations--Phased Implementation
------------------------------------------------------------------------
                      Discount rate                        ($ millions)
------------------------------------------------------------------------
3 Percent...............................................            4.26
7 Percent...............................................            4.68
------------------------------------------------------------------------

    GIPSA expects the annualized costs of Sec. Sec.  201.210 and 
201.211 under phased implementation will be $4.26 million at a three 
percent discount rate and $4.68 million at a seven percent discount 
rate.
D. Benefits of the Phased Implementation Alternative
    The benefits of phased implementation are identical to the benefits 
of the preferred alternative with the exception of when the benefits 
will be received and the amount of the benefits. Like the costs, the 
benefits will be received only when contracts expire, are altered, or 
new contracts are put in place. Moreover, benefits to be received in 
the future are worth less than benefits received today. The benefits 
will be received in the same proportion of the total costs and are 
based on contract durations. The benefits of the phased implementation 
alternative are less than under the preferred alternative, because the 
full benefits will not be received until all contracts have expired, 
been altered, or replaced by new contracts. The full benefits of phased 
implementation will be received beginning in year six.
E. Cost-Benefit Summary of Phased Implementation
    GIPSA expects the annualized costs of Sec. Sec.  201.210 and 
201.211 under phased implementation will be $4.26 million at a three 
percent discount rate and $4.68 million at a seven percent discount 
rate. The benefits will be received in the same proportion as total 
costs and are based on contract durations. The benefits of the phased 
implementation alternative are less than under the preferred 
alternative because the full benefits will not be received until all 
contracts have expired, been altered, or replaced by new contracts.

[[Page 92720]]

Cost-Benefit Comparison of Regulatory Alternatives
    The status quo alternative has zero marginal costs and benefits as 
GIPSA does not expect any changes in the livestock and poultry 
industries. GIPSA compared the annualized costs of the preferred 
alternative to the annualized costs of the phased implementation 
alternative by subtracting the annualized costs of the phased 
implementation alternative from the preferred alternative and the 
results appear in the following table.

  Table 16--Difference in Annualized Costs of Sec.  Sec.   201.210 and
     201.211 Between Preferred Alternative and Phased Implementation
                               Alternative
------------------------------------------------------------------------
                      Discount rate                        ($ millions)
------------------------------------------------------------------------
3 Percent...............................................            1.64
7 Percent...............................................            1.86
------------------------------------------------------------------------

    The annualized costs of the phased implementation alternative is 
$1.64 million less expensive using a three percent discount rate and 
$1.86 million less expensive using a seven percent discount rate. As is 
the case with costs, the benefits will be highest for the preferred 
alternative because the full benefits will be received immediately and 
not when contracts have expired, been altered, or replaced by new 
contracts as is the case under the phased implementation alternative.
    Though the phased implementation alternative would save between 
$1.64 million and $1.86 million on an annualized basis, this 
alternative would deny the benefits offered by Sec. Sec.  201.210 and 
201.211 to a substantial percentage of poultry growers and swine 
production contract growers for five or more years based on the length 
of their production contracts. As the data in Table 12 show, 15.6 
percent of poultry growers and 56 percent of swine production contract 
growers have contracts with durations exceeding five years. Under the 
phased implementation alternative, these poultry growers and swine 
production contract growers would continue to be exposed to the 
potential market failures discussed above in the section on 
Contracting, Industry Structure, and Market Failure: Summary of the 
Need for Regulation until an alteration to an existing contract or the 
entering of a new contract triggered application of Sec. Sec.  201.210 
and 201.211. GIPSA considered all three regulatory alternatives and 
believes that the preferred alternative is the best alternative as the 
benefits of the regulations will be captured immediately by all 
livestock producers, swine production contract growers, and poultry 
growers, regardless of the length of their production or marketing 
contracts.
Regulatory Flexibility Analysis of the Preferred Option
    The Small Business Administration (SBA) defines small businesses by 
their North American Industry Classification System Codes (NAICS).\45\ 
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. Cattle and hog packers, NAICS 311611, are defined as small 
businesses if they have fewer than 1,000 employees.
---------------------------------------------------------------------------

    \45\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

    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.
    GIPSA maintains data on live poultry dealers from the annual 
reports these firms file with GIPSA. Currently, there are 133 live 
poultry dealers that would be subject to the proposed regulations. 
According to U.S. Census data on County Business Patterns, there were 
74 poultry slaughter firms that had more than 1,250 employees in 2013. 
The difference yields approximately 59 poultry slaughterers that have 
fewer than 1,250 employees and would be considered as small businesses 
that would be subject to the proposed regulations.
    Another factor that is important in determining the economic effect 
of the regulations is the number of contracts held by a firm. 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 poultry slaughterers 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.
    Live 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 year the 
regulations are effective, $1.7 \46\ million would fall on live poultry 
dealers classified as small businesses. This amounts to average 
estimated costs for each small live poultry dealer of $29,200.
---------------------------------------------------------------------------

    \46\ Estimated cost to live poultry dealers of $16.79 million x 
10.27 percent of firms that are small businesses = $1.7 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 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. Sec.  201.210 and 201.211 are proportional 
to the number of head processed, then in 2018, the first year the 
regulations would be effective, GIPSA estimates that $538,000 \47\ in 
additional costs would fall on beef packers classified as small 
businesses. This amounts to estimated costs of $1,900 for each small 
beef packer.
---------------------------------------------------------------------------

    \47\ Estimated cost to beef packers of $2.79 million x 19.3 
percent of firms that are small businesses = $538 thousand.
---------------------------------------------------------------------------

    On average, $188,000 \48\ in additional first-year costs would be 
expected to fall on pork packers classified as small businesses, and 
$184,000 \49\ would fall on swine contractors classified as small 
businesses. This amounts to average

[[Page 92721]]

estimated costs for each small pork packer of $860, and average 
estimated costs for each small swine contractor of $506 in the first 
year the regulations would be effective. To the extent that smaller 
beef and pork packers rely on AMA purchases less than large packers, 
the estimates might tend to overstate costs.
---------------------------------------------------------------------------

    \48\ Estimated cost to hogs and pork of $7.61 million x 17.8 
percent of slaughter in small businesses x 13.8 percent of costs 
attributed to packers = $188 thousand.
    \49\ Estimated cost to hogs and pork of $7.61 million x 2.8 
percent of contracted hogs produced by swine contractors that are 
small businesses x 86.2 percent of costs attributed to contractors = 
$184 thousand.
---------------------------------------------------------------------------

    Annualized costs discounted at a three percent interest rate would 
be $117,000 for the cattle industry, $80,500 for the hog industry, and 
$374,000 for the poultry industry. This amounts to annualized costs of 
$410 for each beef packer, $190 for each pork packer, $110 for each 
swine contractor, and $6,300 for each live poultry dealer that is a 
small business. The total annualized costs for small businesses would 
be $571,500.
    Annualized costs at a seven percent discount rate would be $129,400 
for the cattle industry, $89,300 for the hog industry, and $415,000 for 
the poultry industry. This amounts to annualized costs of $450 for each 
beef packer, $206 for each pork packer, $122 for each swine contractor, 
and $7,000 for each live poultry dealer that is a small business. The 
total annualized costs for small businesses would be $633,800.
    The table below lists the estimated additional costs associated 
with the proposed regulations in the first year. It also lists 
annualized costs discounted at three percent and seven percent discount 
rates.

               Table 17--Estimated Costs to Small Businesses From Sec.  Sec.   201.210 and 201.211
----------------------------------------------------------------------------------------------------------------
                                                     Cattle ($        Hogs ($       Poultry ($       Total ($
                  Estimate type                      millions)       millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
First-Year Costs................................           0.538           0.371           1.725           2.634
10 years Annualized at 3 Percent................           0.117           0.081           0.374           0.572
10 years Annualized at 7 Percent................           0.129           0.089           0.415           0.634
----------------------------------------------------------------------------------------------------------------

    In considering the impact on small businesses, GIPSA considered the 
average costs and revenues of each small business impacted by 
Sec. Sec.  201.210 and 201.211. The number of small businesses impacted 
by Sec. Sec.  201.210 and 201.211, 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.

               Table 18--Per Entity Costs to Small Businesses of Sec.  Sec.   201.210 and 201.211
----------------------------------------------------------------------------------------------------------------
                                                     Number of                      Annualized      Annualized
                      NAICS                       small business  First year ($)  Costs--3%  ($)  Costs--7%  ($)
----------------------------------------------------------------------------------------------------------------
112210--Swine Contractor........................             363             506             110             122
311615--Poultry.................................              59          29,236           6,344           7,035
311611--Cattle..................................             287           1,874             407             451
311611--Hogs....................................             219             856             186             206
----------------------------------------------------------------------------------------------------------------

    The following table compares the average per entity first-year and 
annualized costs of Sec. Sec.  201.210 and 201.211 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 19--Comparison of Per Entity Cost to Small Businesses of Sec.  Sec.   201.210 and 201.211 to Revenues
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Average         Average       First-year      Annualized
                                                            Number  of    Average  first-   annualized      revenue per       cost as         cost as
                          NAICS                                small      year  cost per     cost per      establishment    percent of      percent of
                                                             business       entity  ($)     entity  ($)         ($)           revenue         revenue
--------------------------------------------------------------------------------------------------------------------------------------------------------
112210--Swine Contractor................................             363             506             122         485,860            0.10            0.03
311615--Poultry.........................................              59          29,236           7,035      13,842,548            0.21            0.05
311611--Cattle..........................................             287           1,874             451       6,882,205            0.03            0.01
311611--Hogs............................................             219             856             206       6,882,205            0.01            0.00
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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.\50\ 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.
---------------------------------------------------------------------------

    \50\ Source: http://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html. Accessed on November 29, 2016.
---------------------------------------------------------------------------

    As the results in Table 19 demonstrate, the costs of Sec. Sec.  
201.210 and 201.211 as a percent of revenue are small as they are less 
than one percent, with the exception of the upper boundary for swine 
contractors.\51\
---------------------------------------------------------------------------

    \51\ There are significant differences in average revenues 
between swine contractors and cattle, hog, and poultry processors, 
resulting from the difference in SBA thresholds.

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

[[Page 92722]]

    Annualized cost savings of exempting small businesses would be 
about $570,000 using a three percent discount rate and about $634,000 
using a seven percent discount rate.
    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. 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 of Sec. Sec.  201.210 and 201.211 should be 
captured by all livestock producers, swine production contract growers, 
and poultry growers.
    Based on the above analyses regarding Sec. Sec.  201.210 and Sec.  
201.211, 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.

Executive Order 12988

    This proposed 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 proposed 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 proposed rule. Nothing in this 
proposed 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.

Executive Order 13175

    This proposed 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 on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.
    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 EO 13175. 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 identified herein are not expressly 
mandated by Congress.

Paperwork Reduction Act

    This proposed 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-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, Poultry, Livestock, Trade Practices.

    For the reasons set forth in the preamble, we propose to 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 201.210 is added to read as follows:


Sec.  201.210   Unfair, unjustly discriminatory, or deceptive practices 
or devices by packers, swine contractors, or live poultry dealers.

    Any packer, swine contractor, or live poultry dealer is prohibited 
from engaging in conduct or action that constitutes an unfair, unjustly 
discriminatory, or deceptive practice or device in violation of section 
202(a) of the Act. Such conduct or action includes, but is not limited 
to:
    (a) Per se violation of section 202(a). Any conduct or action 
explicitly deemed to be an ``unfair,'' ``unjustly discriminatory,'' or 
``deceptive'' practice or device by the Act is a violation of section 
202(a) of the Act.
    (b) Violation of section 202(a) regardless of harm to competition. 
Absent demonstration of a legitimate business justification, the 
following is an illustrative list of conduct or action that constitutes 
an ``unfair,'' ``unjustly discriminatory,'' or ``deceptive'' practice 
or device and a violation of section 202(a) of the Act regardless of 
whether the conduct or action harms or is likely to harm competition:
    (1) A retaliatory action or the threat of retaliatory action in 
response to lawful communication, association, or assertion of rights 
by a livestock producer, swine production contract grower, or poultry 
grower. A retaliatory action or the threat of retaliatory action 
against any livestock producer, swine production contract grower, or 
poultry grower includes, but is not limited to, coercion, intimidation, 
or unjust discrimination;
    (2) Conduct or action that limits or attempts to limit by contract 
the legal rights and remedies afforded by law of a livestock producer, 
swine production contract grower, or poultry grower:
    (i) The right to a trial by jury except when the livestock 
producer, swine production contract grower, or poultry grower has 
agreed to be bound by arbitration provisions in a contract that 
complies with Sec.  201.218(a) and that provides a meaningful 
opportunity to participate fully in the arbitration process after 
applying the criteria in Sec.  201.218(b);
    (ii) The right, pursuant to section 209(a) of the Act, to resolve 
any dispute among the parties to a poultry growing arrangement, or 
swine production or marketing contract, in the Federal judicial 
district in which the principal part of the performance took place 
under the arrangement or contract;
    (iii) The right to pursue all damages available under applicable 
law; or
    (iv) The right to seek an award of attorney fees available under 
applicable law;
    (3) Failing to comply with the requirements of Sec.  201.100;
    (4) Failing to provide reasonable notice to a poultry grower before 
suspending the delivery of birds after applying the criteria in Sec.  
201.215;

[[Page 92723]]

    (5) Requiring unreasonable additional capital investments from a 
poultry grower or swine production contract grower after applying the 
criteria in Sec.  201.216;
    (6) Failing to provide a reasonable period of time to remedy a 
breach of contract before termination of the contract after applying 
the criteria in Sec.  201.217;
    (7) Failing to provide a meaningful opportunity to participate 
fully in the arbitration process after applying the criteria in Sec.  
201.218;
    (8) Failing to ensure accurate scales and weighing of livestock, 
livestock carcasses, live poultry, or feed for the purposes of 
purchase, sale, acquisition, payment, or settlement as required by the 
regulations under the Act; or
    (9) Failing to ensure the accuracy of livestock, meat, and poultry 
electronic evaluation systems and devices for the purposes of purchase, 
sale, acquisition, payment, or settlement as required by the 
regulations under the Act.
    (c) Conduct or action that harms competition. Absent demonstration 
of a legitimate business justification, 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) of the Act.
0
3. Section 201.211 is added to read as follows:


Sec.  201.211   Undue or unreasonable preferences or advantages.

    The Secretary will consider the following criteria when determining 
whether a packer, swine contractor, or live poultry dealer has engaged 
in conduct or action that constitutes an undue or unreasonable 
preference or advantage and a violation of section 202(b) of the Act. 
These criteria include, but are not limited to:
    (a) Whether a packer, swine contractor, or live poultry dealer 
treats one or more livestock producers, swine production contract 
growers, or poultry growers more favorably as compared to one or more 
similarly situated livestock producers, swine production contract 
growers, or poultry growers who have engaged in lawful communication, 
association, or assertion of their rights;
    (b) Whether a packer, swine contractor, or live poultry dealer 
treats one or more livestock producers, swine production contract 
growers, or poultry growers more favorably as compared to one or more 
similarly situated livestock producers, swine production contract 
growers, or poultry growers who the packer, swine contractor, or live 
poultry dealer contends have taken an action or engaged in conduct that 
violates any applicable law, rule, or regulation related to the 
livestock or poultry operation without a reasonable basis to determine 
that the livestock producer, swine production contract grower, or 
poultry grower committed the violation;
    (c) Whether a packer, swine contractor, or live poultry dealer 
treats one or more livestock producers, swine production contract 
growers, or poultry growers more favorably as compared to one or more 
similarly situated livestock producers, swine production contract 
growers, or poultry growers for an arbitrary reason unrelated to the 
livestock or poultry operation;
    (d) Whether a packer, swine contractor, or live poultry dealer 
treats one or more livestock producers, swine production contract 
growers, or poultry growers more favorably as compared to one or more 
similarly situated livestock producers, swine production contract 
growers, or poultry growers on the basis of race, color, national 
origin, sex, religion, age, disability, political beliefs, sexual 
orientation, or marital or family status;
    (e) Whether the packer, swine contractor, or live poultry dealer 
has demonstrated a legitimate business justification for conduct or 
action that may otherwise constitute an undue or unreasonable 
preference or advantage; and
    (f) Whether the conduct or action by a packer, swine contractor, or 
live poultry dealer harms or is likely to harm competition.

Larry Mitchell,
Administrator, Grain Inspection, Packers and Stockyards Administration.
[FR Doc. 2016-30430 Filed 12-19-16; 8:45 am]
 BILLING CODE 3410-KD-P