82_FR_48794 82 FR 48594 - Scope of Sections 202(a) and (b) of the Packers and Stockyards Act

82 FR 48594 - Scope of Sections 202(a) and (b) of the Packers and Stockyards Act

DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration

Federal Register Volume 82, Issue 200 (October 18, 2017)

Page Range48594-48602
FR Document2017-22593

The United States Department of Agriculture's (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA), Packers and Stockyards Program is withdrawing the interim final rule (IFR) published in the Federal Register on December 20, 2016. Had the IFR become effective, it would have added a paragraph to the regulations issued under the Packers and Stockyards Act (P&S Act) addressing the scope of sections 202(a) and (b) of the P&S Act, which enumerate unlawful practices under the Act. Specifically, the IFR would have added a paragraph to the regulations further explaining the scope of sections 202(a) and (b) of the P&S Act such that certain conduct or actions, depending on their nature and the circumstances, could be found to violate the P&S Act without a finding of harm or likely harm to competition. GIPSA accepted and analyzed comments on the IFR received on or before March 24, 2017. In addition, in the April 12, 2017 Federal Register, GIPSA solicited and analyzed comments received on or before June 12, 2017, on four alternative actions regarding the disposition of the IFR. After careful review and consideration of all comments received, GIPSA is withdrawing the IFR.

Federal Register, Volume 82 Issue 200 (Wednesday, October 18, 2017)
[Federal Register Volume 82, Number 200 (Wednesday, October 18, 2017)]
[Rules and Regulations]
[Pages 48594-48602]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-22593]



[[Page 48593]]

Vol. 82

Wednesday,

No. 200

October 18, 2017

Part II





Department of Agriculture





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Grain Inspection, Packers and Stockyards Administration





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9 CFR Part 201





Scope of Sections 202(a) and (b) of the Packers and Stockyards Act; 
Rule; Unfair Practices and Undue Preferences in Violation of the 
Packers and Stockyards Act; Proposed Rule

Federal Register / Vol. 82 , No. 200 / Wednesday, October 18, 2017 / 
Rules and Regulations

[[Page 48594]]


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DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and Stockyards Administration

9 CFR Part 201

RIN 0580-AB28


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

AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA

ACTION: Final rule; withdrawal.

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SUMMARY: The United States Department of Agriculture's (USDA) Grain 
Inspection, Packers and Stockyards Administration (GIPSA), Packers and 
Stockyards Program is withdrawing the interim final rule (IFR) 
published in the Federal Register on December 20, 2016. Had the IFR 
become effective, it would have added a paragraph to the regulations 
issued under the Packers and Stockyards Act (P&S Act) addressing the 
scope of sections 202(a) and (b) of the P&S Act, which enumerate 
unlawful practices under the Act. Specifically, the IFR would have 
added a paragraph to the regulations further explaining the scope of 
sections 202(a) and (b) of the P&S Act such that certain conduct or 
actions, depending on their nature and the circumstances, could be 
found to violate the P&S Act without a finding of harm or likely harm 
to competition.
    GIPSA accepted and analyzed comments on the IFR received on or 
before March 24, 2017. In addition, in the April 12, 2017 Federal 
Register, GIPSA solicited and analyzed comments received on or before 
June 12, 2017, on four alternative actions regarding the disposition of 
the IFR. After careful review and consideration of all comments 
received, GIPSA is withdrawing the IFR.

DATES: The interim final rule published on December 20, 2016 (81 FR 
92566), is withdrawn as of October 18, 2017.

FOR FURTHER INFORMATION CONTACT:  S. Brett Offutt, Director, Litigation 
and Economic Analysis Division, Packers and Stockyards Program, GIPSA, 
1400 Independence Ave. SW., Washington, DC 20250-3601, (202) 720-7051, 
[email protected].

SUPPLEMENTARY INFORMATION: GIPSA is issuing this final rule to withdraw 
the interim final rule that would have revised the current regulations 
implementing the P&S Act to state that a finding of harm or likely harm 
to competition was not needed to find a violation of section 202(a) or 
(b) of that Act (7 U.S.C. 181-229c). See 7 U.S.C. 192(a) and (b). Below 
is the basis for this decision. The first section provides background 
on the interim final rule and on the proposed rule disposing of the 
interim final rule. The second and third sections discuss the public 
comments GIPSA received on the interim final rule and the proposed 
rule, respectively. The fourth section discusses GIPSA's action, the 
justification for that action, and responds to the comments received. 
The last section provides the required impact analyses, including the 
Regulatory Flexibility Act, the Paperwork Reduction Act, and the 
relevant Executive Orders.

I. Background

    The P&S Act at 7 U.S.C. 192(a) states that it is unlawful for any 
packer, swine contractor, or live poultry dealer to ``[e]ngage in or 
use any unfair, unjustly discriminatory, or deceptive practice or 
device.'' Further, section 192(b) provides that it is unlawful for 
those same types of business entities to ``[m]ake or give any undue or 
unreasonable preference or advantage to any particular person or 
locality in any respect, or subject any particular person or locality 
to any undue or unreasonable prejudice or disadvantage in any 
respect.'' In the June 22, 2010 Federal Register (75 FR 35338-35354), 
GIPSA published a notice of proposed rulemaking (NPRM) that would make 
several revisions to the regulations implementing the P&S Act, 
including one revision that would add a paragraph (c) to 9 CFR 201.3 to 
codify the agency's longstanding interpretation that, in some cases, a 
violation of 7 U.S.C. 192(a) or (b) can be established without proof of 
likelihood of competitive injury. 75 FR at 35340; see also id. at 35351 
(proposed rule text for Sec.  201.3(c)). GIPSA originally set the 
comment period for the NPRM to close on August 23, 2010, and later 
extended it until November 22, 2010 (75 FR 44163).
    The appropriations acts for fiscal years 2012 through 2015 
precluded USDA from finalizing the NPRM, including the proposed Sec.  
201.3(c). The appropriations acts for fiscal years 2016 and 2017, 
however, did not include this preclusion. Accordingly, on December 20, 
2016, GIPSA published in the Federal Register (81 FR 92566-92594) an 
interim final rule (IFR) adopting essentially the same language in 
proposed Sec.  201.3(c) as Sec.  201.3(a). GIPSA invited interested 
persons to submit comments on the IFR on or before its effective date 
of February 21, 2017.
    On February 7, 2017, GIPSA published in the Federal Register (82 FR 
9489) a notice delaying the effective date of the IFR to April 22, 
2017. The notice also extended the deadline for submitting comments to 
March 24, 2017. The delay and extension were consistent with the 
memorandum of January 20, 2017, to the heads of executive departments 
and agencies from the Assistant to the President and Chief of Staff 
entitled ``Regulatory Freeze Pending Review.''
    On April 12, 2017, GIPSA published a notice in the Federal Register 
(82 FR 17531) delaying the effective date for the IFR for an additional 
180 days, from March 24, 2017, to October 19, 2017. This extension 
allowed additional time for USDA to consider adequately all comments 
received and to make an informed policy decision.
    Concurrent with this notice, GIPSA published in the Federal 
Register (82 FR 17594) a proposed rule presenting four alternatives for 
disposing the IFR: (1) Allow the interim final rule to become 
effective, (2) suspend the interim final rule indefinitely, (3) delay 
the effective date of the interim final rule further, or (4) withdraw 
the interim final rule. The proposed rule gave interested persons until 
June 12, 2017, to comment on the four alternatives.
    GIPSA has analyzed the comments received on the interim final rule 
published on December 20, 2016. It has also evaluated the comments 
received in response to the proposed rule published on April 12, 2017, 
regarding disposition of that rule. Now, GIPSA is withdrawing the 
interim final rule.

II. Interim Final Rule--Discussion of Comments

    GIPSA solicited comments concerning the IFR for a period of 90 days 
ending on March 24, 2017. GIPSA received 344 timely comments. 
Commenters were from all sectors of the livestock and poultry 
industries, including livestock producer groups; poultry grower 
interest groups; packers; poultry company associations; farmers and 
farmers' organizations; consumer organizations and consumers; and an 
animal rights group.
    A common theme of those opposed to the IFR was that it would lead 
to increased litigation. Commenters said that without the requirement 
to show harm to competition, the IFR would embolden producers and 
growers to sue for any perceived slight by a packer or integrator. Fear 
of litigation would cause packers and integrators to vertically 
integrate further, increase their volume of captive supplies, and rely 
even more on those suppliers and growers they currently use. Therefore, 
these commenters suggested the IFR would

[[Page 48595]]

result in new suppliers being shut out of markets.
    A major poultry trade association said that the IFR failed to 
describe what conduct or actions would constitute a violation of the 
P&S Act with sufficient clarity for people to understand prohibited or 
permitted conduct or actions and that this ambiguity would lead to 
arbitrary and discriminatory enforcement. It said that the IFR is not 
entitled to deference because, among other things, the plain language 
of 7 U.S.C. 192(a) and (b) requires a showing of competitive injury. 
Finally, it noted that, although the Department of Justice (DOJ) filed 
amicus briefs with several appellate courts arguing against the need to 
show competitive harm, DOJ's legal arguments failed to sway those 
courts' decisions.
    A livestock packing industry association pointed out that the 
Administrative Procedure Act (APA) (5 U.S.C. 551-559) requires the 
public to have an opportunity to comment timely on proposed rules. 
Because the substance of the IFR was part of the June 2010 NPRM, this 
commenter believed the rulemaking record was ``stale'' and said that 
GIPSA should have re-opened the comment period to refresh the 
rulemaking record or have terminated the rulemaking proceeding. 
Further, having failed to do so, GIPSA should not be entitled to 
deference.
    Two trade associations representing the pork and beef industries 
also opposed the IFR. These commenters said that GIPSA failed to 
identify specific systemic problems needed to justify it. Although 
GIPSA provided examples of conduct or actions that could be challenged 
under the IFR, they said that GIPSA provided no evidence that the 
referenced conduct or actions occur in the pork or beef industries, 
and, therefore, it was not clear if these problems occur in those 
industries. If problems existed, they felt that GIPSA should have 
tailored the rule to address those problems instead of issuing one that 
was over-inclusive and impacted the entire meat industry.
    These commenters also said that GIPSA failed to address adequately 
the judicial decisions interpreting 7 U.S.C. 192 that ran counter to 
the IFR. They said that court decisions held that the words used in 7 
U.S.C. 192, such as ``unfair'' and ``unjust,'' came from other 
antitrust statutes and reasoned their anti-competitive meaning 
transferred over to the P&S Act. They said that GIPSA also failed to 
argue against the conclusion drawn by multiple courts that the 
legislative history of the P&S Act shows that Congress intended Sec.  
192 to require competitive injury. Finally, they noted that GIPSA 
failed to show that its interpretation was in fact a longstanding one. 
They argued that this failure undermined the argument that the courts 
should defer to GIPSA's interpretation.
    Commenters opposed to the IFR also said that it would discourage 
incentives, premiums, and payment plans offering price differentials to 
producers or growers for supplying higher quality product or greater 
production efficiency. They claimed that the ambiguity of the terms 
used in the IFR would encourage limiting or abandoning alternative 
marketing arrangements that provide compensation that is both certain 
and necessary for producers to use in making financial investments.
    Self-identified contract growers for a major poultry company 
provided similar comments, saying that the IFR was not in the best 
interests of contract poultry growers, poultry companies, or consumers. 
They said that the pay system used in the poultry industry encouraged 
innovation and investment in the best practices and equipment. They 
predicted that the IFR might lead to changes to the pay system by 
removing incentives for innovation and investment, resulting in the 
U.S. poultry industry becoming less competitive in global markets and 
threatening jobs here in the U.S.
    A large poultry processing and livestock slaughtering corporation, 
along with many of its individual employees submitting form letters, 
said that GIPSA failed to prove the IFR was economically justified. The 
corporation argued that protection of competition must be the 
``underpinning'' of a regulation issued under the P&S Act and that 
GIPSA's competition-related justifications for the IFR were 
insufficient because the agency: (1) Failed to sufficiently cite 
economic studies to demonstrate that there is an imbalance of market 
power between livestock producers and poultry growers and (2) failed to 
show that regulated entities have an incentive to treat livestock 
producers and poultry growers in a manner that results in a lower 
supply of growers willing to contract. Moreover, this corporation 
claimed that the cost to the industry of the IFR would be $1 billion 
over the next decade, without specific quantifiable benefit.
    Supporters of the IFR included individual livestock producers, 
poultry growers, and farmers' organizations. They pointed to the 
hundreds of thousands or millions of dollars farmers invest to grow or 
produce for a company. Many expressed their belief that farmers need 
the IFR's protection to avoid losing their operations and their 
investments because of unfair, deceptive, and/or retaliatory practices. 
Support for the IFR was also rooted in the belief that requiring harm 
to competition was an impossibly high standard for individual farmers 
to meet.
    These commenters said increased concentration and imbalances of 
power in the marketplace facilitate abuse. They argued that small 
family farmers should not have to compete with one another because of 
the strong hold corporate and commercial farms and packers have on the 
agricultural sector. One commenter emphasized that it was unfair, 
unjustly discriminatory, or unduly preferential to require poultry 
growers to participate in a compensation system in which growers do not 
have full control over their production inputs. They said production 
inputs can be manipulated to the detriment of disfavored growers; and 
because there are limited contracting options, growers may not have the 
means to challenge abuses. Thus, family farmers face unfair practices 
because corporate concentration leads to power imbalances and this 
growing corporate concentration leaves consumers with fewer choices in 
the grocery stores.
    Supporters of the IFR also said it provided common-sense 
protections for farmers. They argued that the purpose of the P&S Act 
was to protect farmers from unfair treatment by companies and not just 
from anticompetitive practices. They said that the IFR simply ensured 
that farmers could challenge unfair treatment without having to bring a 
federal antitrust case. One commenter stated that as long as 
competitive injury is the law there is no deterrent preventing 
companies from treating an individual farmer as it wishes.

III. Disposition of the Interim Final Rule--Discussion of Comments

    In the April 12, 2017 proposed rule, GIPSA stated that there were 
significant policy and legal issues addressed within the IFR that 
warranted further review by USDA. For these reasons, the proposed rule 
requested public comments on four alternative actions that USDA could 
take with regard to the disposition of the IFR. The four alternatives 
listed in the proposed rule were as follows: (1) Allow the IFR to 
become effective; (2) suspend the IFR indefinitely; (3) further delay 
the effective date of the IFR; or (4) withdraw the IFR. The proposed 
rule gave interested persons until June 12, 2017, to comment on the 
four alternative actions.
    USDA received 1,951 timely comments. Of those comments, 1,466 
preferred alternative 4 (i.e., to withdraw the IFR). Another 469 
preferred

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alternative 1 (i.e., to allow the IFR to become effective as planned). 
One commenter preferred alternative 2 (i.e., to suspend the IFR 
indefinitely). This commenter, however, also said that GIPSA should 
``allow the rule to die,'' possibly indicating a real preference for 
alternative 4, withdrawal, as opposed to an indefinite suspension. No 
one voiced a preference for alternative 3 (i.e., to further delay the 
IFR's effective date). Fifteen individuals provided comments on the 
proposed rule but did not state a preference.
    Many commenters who provided comments on the IFR also provided 
comments on this proposed rule, making largely the same arguments. 
Supporters of withdrawal were again concerned about increased 
litigation and vertical integration, reduction or elimination of 
alternative marketing agreements, and decreased market access for 
producers and growers. Those favoring the IFR reiterated their concern 
that increased concentration led to unfair practices and undue 
preferences against farmers. They believed that the IFR provided 
farmers the tools to address unfair practices and undue preferences.

IV. Justification for Withdrawal of the Interim Final Rule and Response 
to Comments

    After reviewing the IFR and carefully considering the public 
comments, GIPSA is withdrawing the IFR because of serious legal and 
policy concerns related to its promulgation and implementation. First, 
the interpretation of 7 U.S.C. 192(a)-(b) embodied in the IFR is 
inconsistent with court decisions in several U.S. Courts of Appeals, 
and those circuits are unlikely to give GIPSA's proposed interpretation 
deference. Additionally, the IFR's justification for dispensing with 
notice and comment for ``good cause'' was inadequate to satisfy the 
APA's requirements.

A. Courts Are Unlikely To Give Deference to the Interim Final Rule

    The purpose of the IFR was to clarify that conduct or actions may 
violate 7 U.S.C. 192(a) and (b) without adversely affecting, or having 
a likelihood of adversely affecting, competition. This reiterated 
USDA's longstanding interpretation that not all violations of the P&S 
Act require a showing of harm or likely harm to competition.
    Contrary to comments that GIPSA failed to show that USDA's 
interpretation was longstanding, USDA has adhered to this 
interpretation of the P&S Act for decades.\1\ DOJ has filed amicus 
briefs with several federal appellate courts arguing against the need 
to show the likelihood of competitive harm for all violations of 7 
U.S.C. 192(a) and (b).\2\
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    \1\ E.g., In re Ozark County Cattle Co., 49 Agric. Dec. 336, 365 
(1990); In re Rodman, 47 Agric. Dec. 885, 912-13 (1988); In re Itt 
Cont'l Baking Co., 44 Agric. Dec. 748, 781 (1985) (citing Packers 
and Stockyards cases from 1957 through 1983); c.f. Sioux City Stock 
Yards Co. v. United States, 49 F. Supp. 801, 806 (N.D. Iowa 1943) 
(``[T]he statute, neither expressly nor impliedly, makes any 
[finding that a market injury was being threatened] a jurisdictional 
prerequisite to the Secretary's power to act.''); In re:Macy Live 
Poultry Co, 1 Agric. Dec. 479 (1942) (finding proof of weight fraud 
alone sufficient to sanction a live poultry dealer).
    \2\ E.g., Brief for Amicus Curiae the United States of America 
in Support of Plaintiff-Appellant, Terry v. Tyson Farms, Inc., 604 
F.3d 272 (6th Cir. 2010) (No. 08-5577), 2008 WL 5665508 at 11-26; En 
Banc Brief for Amicus Curiae the United States of America in Support 
of Plaintiffs-Appellees, Wheeler v. Pilgrim's Pride Corp., 591 F.3d 
355 (5th Cir. 2009) (No. 07-40651), 2009 WL 7349991 at 9-29.
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    However, as commenters have noted and GIPSA acknowledges, several 
federal appellate courts have declined to defer to USDA's 
interpretation (see discussion of cases below). There is good reason to 
believe that several of those courts would continue to do so even if 
USDA's interpretation were codified in a final rule.
    When determining whether an agency's interpretation of a statute 
that it administers is entitled to deference, the Supreme Court 
explained in Chevron, U.S.A., Inc. v. Natural Resources Defense 
Council, Inc.,\3\ that courts look at whether Congress has directly 
spoken to the precise question at issue. If the intent of Congress is 
clear, that is the end of the matter; the court, as well as the agency, 
must give effect to the unambiguously expressed intent of Congress. If, 
however, the court determines that Congress has not directly addressed 
the precise question at issue, the court does not simply impose its own 
construction on the statute, as would be necessary in the absence of an 
administrative interpretation. Rather, if the statute is silent or 
ambiguous with respect to the specific issue, the question for the 
court is whether the agency's answer is based on a permissible 
construction of the statute.\4\
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    \3\ 467 U.S. 837 (1984).
    \4\ Id. at 842-43 (endnotes omitted).
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    The courts have granted Chevron deference ``when it appears that 
Congress delegated authority to the agency generally to make rules 
carrying the force of law, and that the agency interpretation claiming 
deference was promulgated in the exercise of that authority.'' \5\ 
Moreover, even if a court has spoken as to the interpretation of a 
statute, ``[a] court's prior judicial construction of a statute trumps 
an agency construction otherwise entitled to Chevron deference only if 
the prior court decision holds that its construction follows from the 
unambiguous terms of the statute and thus leaves no room for agency 
discretion.'' \6\
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    \5\ Mayo Found. for Medical Educ. and Res. v. United States, 562 
U.S. 44, 45 (2011) (quoting United States v. Mead Corp., 533 U.S. 
218, 226-27 (2001)).
    \6\ Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Serv., 545 
U.S. 967, 982 (2005) (emphasis added).
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    In the IFR, GIPSA acknowledged that multiple federal circuit courts 
had held that harm to competition is required to prove violations of 7 
U.S.C. 192(a) and (b). For example, in the Eleventh Circuit case of 
London v. Fieldale Farms Corp.,\7\ the plaintiffs alleged that 
defendant impermissibly terminated plaintiffs' contract.\8\ The court 
held that plaintiffs' failure to allege harm to competition was fatal 
to their 7 U.S.C. 192(a) claim.\9\ The court stated that ``in order to 
prevail under the [P&S Act], a plaintiff must show that the defendant's 
deceptive or unfair practice adversely affects competition or is likely 
to adversely affect competition.'' \10\
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    \7\ 410 F.3d 1295 (11th Cir. 2005).
    \8\ Id.
    \9\ Id. at 304.
    \10\ Id.
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    In the Tenth Circuit case of Been v. O.K. Industries, Inc.,\11\ the 
plaintiffs, who were growers, alleged that a variety of defendants' 
actions with respect to the growers' contracts were unfair.\12\ The 
court concluded that plaintiffs must show that defendants' conduct 
harmed or was likely to harm competition under 7 U.S.C. 192(a) stating:
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    \11\ 495 F.3d 1217 (10th Cir. 2007).
    \12\ Id. at 1223.

    We are concerned here only with whether unfairness requires a 
showing of a likely injury to competition, not whether deceptive 
practices require such a showing. We therefore join the [sic] those 
circuits requiring a plaintiff who challenges a practice under Sec.  
[192(a)] to show that the practice injures or is likely to injure 
competition.\13\
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    \13\ Id. at 1230.

    In the Fifth Circuit case of Wheeler v. Pilgrim's Pride Corp.,\14\ 
the plaintiffs alleged that one grower wrongfully received superior 
contract terms and that the disparity was unfair and deceptive under 7 
U.S.C. 192(a) and (b).\15\ The en banc court rejected this argument, 
finding ``[t]o support a claim

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that a practice violates subsection (a) or (b) of Sec.  192 there must 
be proof of injury, or likelihood of injury, to competition.'' \16\
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    \14\ 591 F.3d 355 (5th Cir. 2009).
    \15\ Id. at 357.
    \16\ Id. at 363.
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    In the Sixth Circuit case of Terry v. Tyson Farms, Inc.,\17\ the 
plaintiff alleged, among other things, that the defendant poultry 
company cancelled his contract because plaintiff asserted his 
regulatory right to observe the weighing of his birds.\18\ He claimed 
this violated 7 U.S.C. 192(a) and (b).\19\ The court disagreed and held 
that ``in order to succeed on a claim under Sec.  192(a) and (b) of the 
[P&S Act], a plaintiff must show an adverse effect on competition.'' 
\20\ The Terry court cited cases from sister circuits, and claimed that 
seven of the circuits agreed with its legal conclusion.\21\ The Terry 
court also claimed that this ``tide'' of opinions from other circuits 
has ``now become a tidal wave.'' \22\
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    \17\ 604 F.3d 272 (6th Cir. 2010).
    \18\ Id. at 274.
    \19\ Id. at 277.
    \20\ Id. at 279.
    \21\ Id. at 277-79 (citing cases from the Fourth, Fifth, 
Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits and electing to 
join those circuits).
    \22\ Id. at 277.
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    Many commenters argued that the plain language of the P&S Act 
requires competitive injury and that GIPSA therefore is not entitled to 
deference for a conflicting regulation. GIPSA recognizes that at least 
two federal circuits are unlikely to defer to USDA's interpretation. In 
the Fifth Circuit, the Wheeler court said that ``deference . . . is 
unwarranted where Congress has delegated no authority to change the 
meaning the courts have given to the statutory terms . . . .'' \23\ The 
court held USDA was not entitled to deference ``because the PSA is 
unambiguous.'' \24\ Likewise, the Eleventh Circuit refused to defer to 
USDA stating, ``[t]his court gives Chevron deference to agency 
interpretations of regulations promulgated pursuant to congressional 
authority. The [P&S Act] does not delegate authority to the Secretary 
to adjudicate alleged violations of [7 U.S.C. 192] by live poultry 
dealers. Congress left that task exclusively to the federal courts.'' 
\25\ It went on to say that ``[b]ecause Congress plainly intended to 
prohibit only those unfair, discriminatory or deceptive practices 
adversely affecting competition a contrary interpretation of [7 U.S.C. 
192(a)] deserves no deference.'' \26\
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    \23\ Wheeler v. Pilgrim's Pride Corp., 591 F.3d 355, 362 (5th 
Cir. 2009).
    \24\ Id. at 373 n.3.
    \25\ Id. at 1304 (internal citations omitted).
    \26\ Id. (internal quotations and citations omitted).
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    Commenters supporting the IFR cited the current court precedent as 
justification for its promulgation. They said showing harm to 
competition was a difficult standard to meet; and as long as it remains 
a requirement, growers and producers would continue to be subjected to 
unfair business practices, and their businesses would be at risk. GIPSA 
agreed with this view when it promulgated the IFR; however, current 
precedent poses a significant legal issue. As discussed above, the 
courts only grant Chevron deference to an agency's interpretation of a 
statute under its purview when the statute is ambiguous and the 
agency's interpretation is reasonable.\27\
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    \27\ Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 
467 U.S. 837, 842-43 (1984).
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    If the IFR becomes effective, it will conflict with Fifth, Sixth, 
Tenth, and Eleventh Circuit precedent. This conflict creates serious 
concerns. GIPSA is cognizant of the commenters who support this IFR 
becoming effective and of their concerns regarding a perceived 
imbalance of bargaining power. Also, GIPSA recognizes that the 
livestock and poultry industries have a vested interest in knowing what 
conduct or actions violate 7 U.S.C. 192(a) and (b). However, a 
regulation conflicting with relevant Circuit precedent will inevitably 
lead to more litigation in the livestock and poultry industries. 
Protracted litigation to both interpret this regulation and defend it 
serves neither the interests of the livestock and poultry industries 
nor GIPSA.
    To be sure, some commenters overstated the hostility in the case 
law to USDA's longstanding position. Contrary to some commenters' 
claims, GIPSA disagrees that the remaining U.S. Circuit Courts of 
Appeals that have had occasion to address the issue (Fourth, Seventh, 
Eighth, and Ninth Circuits) have gone as far as London, Been, Wheeler, 
and Terry, to declare that harm or likelihood of harm to competition is 
required in all cases brought under 7 U.S.C. 192(a) and (b).
    Some courts affirmed the position of the USDA that certain 
practices are unfair because they are likely to harm competition. In 
the Eighth Circuit case of IBP v. Glickman,\28\ the USDA brought an 
action against a packer respondent for alleged unlawful use of the 
packer's right of first refusal.\29\ Among other things, the USDA's 
Judicial Officer ruled that there was potential harm to competition 
based on the allegation that the respondent was not participating in 
the bidding for cattle.\30\ While the IBP court did not agree with the 
Judicial Officer's factual findings, the court agreed that the legal 
standard the Judicial Officer applied was the correct one: ``[w]e have 
said that `a practice which is likely to reduce competition and prices 
paid to farmers for cattle can be found an unfair practice under the 
Act, and be a predicate for a cease and desist order.' '' \31\
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    \28\ 187 F.3d 974 (8th Cir. 1999).
    \29\ Id. at 975-76.
    \30\ Id. at 976.
    \31\ Id. at 977 (quoting Farrow v. USDA, 760 F.2d 211, 214 (8th 
Cir. 1985)) (emphasis added in IBP).
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    Likewise, in the Ninth Circuit case of De Jong Packing Co. v. 
USDA,\32\ the appellate court agreed that collusion to force 
conditional bidding on livestock auctions was anti-competitive in 
nature holding:
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    \32\ 618 F.2d 1329 (9th Cir. 1980).

    The government contends that the purpose of the Act is to halt 
unfair trade practices in their incipiency, before harm has been 
suffered; that unfair practices under [7 U.S.C. 192] are not 
confined to those where competitive injury has already resulted, but 
includes those where there is a reasonable likelihood that the 
purpose will be achieved and that the result will be an undue 
restraint of competition. We agree.\33\
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    \33\ Id. at 1336-37.

    Other courts have only required a showing of harm or likelihood of 
harm to competition for the conduct or action at issue without 
generalizing their holdings to all violations of 7 U.S.C. 192(a) and 
(b). In the Fourth Circuit case of Philson v. Goldsboro Mill Co.,\34\ 
the plaintiff turkey growers claimed their contract was terminated in 
retaliation for ``vocalization of their grievances'' and that 
defendant's conduct was, among other things, an unfair or deceptive 
practice in violation of the P&S Act.\35\ The court held that, while 
``it is unnecessary to prove actual injury to establish an unfair or 
deceptive practice [under 7 U.S.C. 192(a) and (b)], a plaintiff must 
nonetheless establish that the challenged act is likely to produce the 
type of injury that the Act was designed to prevent.'' \36\ Thus, the 
court held that the district court did not err in instructing the jury 
that plaintiff must prove that ``the defendants' conduct was likely to 
affect competition adversely in order to prevail on their claims under 
the Packers and Stockyard Act.'' \37\
---------------------------------------------------------------------------

    \34\ 164 F.3d 625, Nos. 96-2542, 96-2631, 1998 WL 709324 (4th 
Cir. Oct. 5, 1998).
    \35\ Id. at *2.
    \36\ Id. at *4 (emphasis in original).
    \37\ Id.
---------------------------------------------------------------------------

    In the Seventh Circuit case of Pacific Trading Co. v. Wilson & 
Co.,\38\ the plaintiffs claimed that the defendant packers had 
knowingly delivered ``off

[[Page 48598]]

condition'' hams in violation of 7 U.S.C. 192(a).\39\ The court 
concluded that ``the plaintiffs have failed to state a claim upon which 
relief can be granted under the Packers and Stockyards Act. For the 
purpose of that statute is to halt unfair business practices which 
adversely affect competition, not shown here . . . .'' \40\
---------------------------------------------------------------------------

    \38\ 547 F.2d 367 (7th Cir. 1976).
    \39\ Id. at 369.
    \40\ Id. at 369-70.
---------------------------------------------------------------------------

    One of the cases from the Eighth Circuit commonly cited by 
commenters as requiring a showing of harm to competition for all 
violations of 7 U.S.C. 192(a) and (b), does not convincingly support 
the commenters' position. In Jackson v. Swift Eckrich, Inc.,\41\ the 
plaintiffs claimed that 7 U.S.C. 192 entitled them the opportunity to 
obtain the same type of contract that defendant offered other 
independent growers.\42\ The court disagreed stating that ``[w]e are 
convinced that the purpose behind Sec.  202 of the [P&S Act], 7 U.S.C. 
192, was not to so upset the traditional principles of freedom of 
contract. The [P&S Act] was designed to promote efficiency, not 
frustrate it.'' \43\ But, the court also appeared to acknowledge that 
other alleged violations of the P&S Act did not require a showing of 
harm to competition. Specifically, the court explained that:
---------------------------------------------------------------------------

    \41\ 53 F.3d 1452 (8th Cir. 1995).
    \42\ Id. at 1458.
    \43\ Id.

    With regard to the claims of `other' [P&S Act] violations, the 
breach of contract claim, and the fraud claim, the district court 
found that a jury question existed. We agree. The Jacksons presented 
evidence that Swift Eckrich had violated a number of PSA 
regulations, that it did not use the condemned carcass calculation 
formula provided in the floor contracts, and that it recorded bird 
weights without actually performing any measurements.\44\
---------------------------------------------------------------------------

    \44\ Id. at 1458-59 (internal citations omitted).

    On the other hand, other Eighth Circuit cases have required a 
showing of a likelihood of competitive injury when a plaintiff alleges 
that a practice is unfair because of its relationship to prices, 
bidding, or competition.\45\
---------------------------------------------------------------------------

    \45\ See Farrow v. USDA, 760 F.2d 211, 214 (8th Cir. 1985) (``We 
agree with the JO that a practice which is likely to reduce 
competition and prices paid to farmers for cattle can be found an 
unfair practice under the Act, and be a predicate for a cease and 
desist order. We conclude that this is so even in the absence of 
evidence that the participants made their agreement for the purpose 
of reducing prices to farmers or that it had that result.'').
---------------------------------------------------------------------------

    Nevertheless, because at least two courts of appeals have held that 
the text of the P&S Act unambiguously forecloses USDA's longstanding 
interpretation, allowing the IFR to go into effect would create an 
unworkable legal patchwork. Based on the comments received and the 
above legal analysis, GIPSA is withdrawing the IFR.

B. The Interim Final Rule Was Insufficiently Supported by a ``Good 
Cause'' Exception to the Administrative Procedure Act's Notice and 
Comment Procedure

    GIPSA is also withdrawing the IFR because we believe it did not 
satisfy the APA's notice and comment requirements at 5 U.S.C. 553(b) 
and (c). GIPSA justified promulgating the IFR without notice and pre-
promulgation opportunity for comment because we reasoned that its 
solicitation of comments over a five month period on the June 2010 NPRM 
satisfied those requirements. 81 FR at 92570. GIPSA reached this 
conclusion because proposed 9 CFR 201.3(c) in the June 2010 NPRM was 
largely the same as 9 CFR 201.3(a) in the IFR. Upon further 
examination, we recognize that this justification is not sufficient to 
meet the APA's bar for establishing ``good cause'' sufficient to 
dispense with normal notice and comment procedures.
    To promulgate a rule as an interim final rule and forego the normal 
notice and comment procedure, an agency must invoke a ``good cause'' 
exception under the APA and explain its rationale within the rule 
itself.\46\ To establish ``good cause,'' the agency must demonstrate 
that the normal procedure would be ``impracticable, unnecessary, or 
contrary to the public interest.'' \47\ ``[T]he inquiry into whether 
good cause has been properly invoked must proceed on a case-by-case 
basis, with a sensitivity to the totality of the factors at play.'' 
\48\ When agencies invoke ``good cause,'' ``the good cause exception is 
to be `narrowly construed and only reluctantly countenanced.' '' \49\
---------------------------------------------------------------------------

    \46\ 5 U.S.C. 553(b)(B).
    \47\ Id.
    \48\ Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 
332-33 (1990) (citing Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 
1984)).
    \49\ Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 
(D.C. Cir.1992) (quoting State of New Jersey v. EPA, 626 F.2d 1038, 
1045 (D.C. Cir. 1980)).
---------------------------------------------------------------------------

    Within the good cause inquiry, courts have identified situations 
that are ``impracticable, unnecessary, or contrary to the public 
interest,'' based on a consideration of multiple factors. Those factors 
include:

the scale and complexity of the regulatory program the agency was 
required to implement; any deadlines for rulemaking imposed by the 
enabling statute; the diligence with which the agency approached the 
rulemaking process; obstacles outside the agency's control that 
impeded efficient completion of the rulemaking process; and the harm 
that could befall members of the public as a result of delays in 
promulgating the rule in question.\50\
---------------------------------------------------------------------------

    \50\ Northern Mariana Islands v. United States, 686 F.Supp.2d 7, 
14-15 (D.D.C. 2009) (internal citations omitted).

    A situation is ``impracticable'' if ``the agency cannot `both 
follow section 553 and execute its statutory duties.' '' \51\ 
``Unnecessary'' refers to situations where the rule at issue is 
``technical or minor'' \52\ or where it ``is a routine determination, 
insignificant in nature and impact, and inconsequential to the industry 
and to the public.'' \53\ Finally, ``contrary to the public interest'' 
arises when there is ``real harm to the public, not mere inconvenience 
to the Agency,'' \54\ and it ``connotes a situation in which the 
interest of the public would be defeated by any requirement of advance 
notice,'' such as a situation when announcing a rule would enable the 
harm the rule was designed to prevent.\55\
---------------------------------------------------------------------------

    \51\ Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 n.2 
(9th Cir. 1992) (quoting Levesque v. Block, 723 F.2d 175, 184 (1st 
Cir. 1983)).
    \52\ Id.
    \53\ Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012) 
(quoting Util. Solid Waste Activities Group v. EPA, 236 F.3d 749, 
755, (D.C. Cir. 2001).
    \54\ Action on Smoking and Health v. Civ. Aeronautics Board, 713 
F.2d 795, 801-02 (D.C. Cir. 1983).
    \55\ Util. Solid Waste Activities Group, 236 F.3d at 755 
(quoting United States Department of Justice, Attorney General's 
Manual on the Administrative Procedure Act 31 (1947)).
---------------------------------------------------------------------------

    The sole justification for invoking ``good cause'' in the IFR was 
that its June 2010 NPRM soliciting public comment satisfied the APA's 
notice and comment requirements. Courts have acknowledged that an 
agency does not always have to ``start from scratch'' and initiate new 
notice and comment proceedings to re-promulgate a rule.\56\ On the 
other hand, the ``mere presence of a prior notice and comment record'' 
does not automatically ``render the solicitation of new comments 
unnecessary.'' \57\ ``Although the [APA] does not establish a `useful 
life' for a notice and comment record, clearly the life of such a 
record is not infinite.'' \58\ Accordingly, ``[i]f the original record 
is still fresh, a new round of notice and comment might be unnecessary. 
Such a finding, however, must be made by the agency and supported in 
the record; it is not self-evident.'' \59\
---------------------------------------------------------------------------

    \56\ Mobile Oil Corp. v. EPA, 35 F.3d 579, 584 (D.C. Cir. 1994).
    \57\ Action on Smoking and Health v. Civ. Aeronautics Board, 713 
F.2d 795, 801 (D.C. Cir. 1983).
    \58\ Id. at 800.
    \59\ Mobile Oil Corp., 35 F.3d at 584.
---------------------------------------------------------------------------

    We are unable to identify circumstances sufficient to dispense

[[Page 48599]]

with traditional notice and comment procedures. Although a large number 
of comments were received over a five-month period, USDA is unwilling 
to assert--and the record does not support the inference that--the June 
2010 NPRM was still ``fresh.'' \60\ Accordingly, the IFR's good cause 
explanation is unlikely to withstand judicial scrutiny. As one 
commenter said, the record from the June 2010 rulemaking was ``stale.'' 
Thus, according to the commenter, GIPSA should have re-opened the 
comment period to refresh the rulemaking record or terminated the 
rulemaking record. GIPSA's decision to seek post-promulgation comment 
in the IFR, noting the high stakeholder interest, the intervening six 
years since the NPRM, and an interest in open and transparent 
government, suggests that the agency recognized the need to refresh the 
rulemaking record.
---------------------------------------------------------------------------

    \60\ See id.
---------------------------------------------------------------------------

    Failing ``to incorporate an adequate statement of good cause for 
dispensing with prior notice and comment has not been held fatal if 
good cause indeed existed,'' \61\ but we can offer no further 
justifications as to why the normal notice and comment procedure was 
``impracticable, unnecessary, or contrary to the public interest.'' The 
``impracticable'' prong was not applicable because GIPSA could have 
executed its statutory duties by issuing a new proposed rule and 
soliciting comments in compliance with the APA. The ``unnecessary'' 
prong was also not applicable because GIPSA estimated the 
implementation costs of the rule for the livestock and poultry 
industries would be millions of dollars. For this reason alone, the IFR 
was not ``technical or minor.'' Finally, there was no evidence that 
prior notice and opportunity for comment would have been ``contrary to 
the public interest,'' as the IFR memorialized GIPSA's well known and 
longstanding interpretation.
---------------------------------------------------------------------------

    \61\ Kollett v. Harris, 619 F.2d 134, 144-45 (1st Cir. 1980).
---------------------------------------------------------------------------

    GIPSA thus recognizes that no good cause existed. Neither Congress 
nor a court mandated that GIPSA issue Sec.  201.3(a), nor were there 
any deadlines for its issuance.\62\ Because Sec.  201.3(a) only 
reiterated USDA's longstanding interpretation of the P&S Act as 
confirmed in the 2010 NPRM, the impacted livestock and poultry 
industries should have been aware of the interpretation, thereby 
negating the necessity to issue the rule immediately.\63\ Also, there 
was no evidence that the public would suffer harm following the normal 
notice and comment procedure.\64\ Although appropriations acts 
prevented GIPSA from taking any action for three years, this 
congressionally mandated delay alone is insufficient to constitute good 
cause.
---------------------------------------------------------------------------

    \62\ Id. at 15.
    \63\ Id.
    \64\ See U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 n.15 (5th 
Cir. 1979) (listing as examples of harm regulations ``involving 
government price controls, because of the market distortions caused 
by the announcement of future controls'' and regulations involving 
``gas stations, where temporary shortages and discriminatory 
practices were found to have deprived some users of any supply and 
led to violence'').
---------------------------------------------------------------------------

    For the reasons discussed above, GIPSA concludes that its possible 
justifications for issuing the rule as an interim final rule fail to 
meet any of the prongs of the ``good cause'' exception, individually or 
cumulatively. Therefore, the prior decision to forgo notice and comment 
was flawed and compels GIPSA to withdraw the IFR.

V. Required Impact Analyses

A. Effective Date

    The IFR addressing the scope of 7 U.S.C. 192(a) and (b) will become 
effective on October 19, 2017, unless withdrawn or suspended. Pursuant 
to the APA at 5 U.S.C. 553(d)(3), GIPSA finds good cause for making 
this final rule effective less than 30 days after publication in the 
Federal Register because it would be contrary to the public interest to 
delay any further.
    Justifiable good cause includes situations where the interest of 
the public is defeated when following the normal procedure would create 
the harm the rule was designed to prevent.\65\ This situation is 
present here. A significant purpose in withdrawing the IFR is to avoid 
conflict with federal appellate courts. If the IFR goes into effect 
before this final rule to withdraw it can go into effect, the conflict 
with the federal appellate courts will occur. Accordingly, to eliminate 
this potential conflict, it is necessary to have this rule become 
effective immediately.
---------------------------------------------------------------------------

    \65\ See Util. Solid Waste Activities Group v. EPA, 236 F.3d 
749, 755 (D.C. Cir. 2001).
---------------------------------------------------------------------------

    Additionally, because GIPSA erred in promulgating the IFR without 
following the APA's normal notice and comment procedure, it is in the 
public's interest for GIPSA to respect the rule of law and withdraw the 
IFR. Immediately withdrawing the IFR prevents confusion in the 
livestock and poultry industries that may occur if the interim rule was 
only briefly effective. Thus, this final rule will be effective upon 
publication in the Federal Register.

B. Executive Orders 12866 and 13771, and Regulatory Flexibility Act

    This final rule 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. This final rule is an Executive 
Order 13771 deregulatory action. Assessment of the cost of allowing the 
interim final rule to take effect and the cost savings attributed to 
not allowing the interim final rule to take effect may be found in the 
economic analysis below.
    The first section of the analysis discusses the two regulatory 
alternatives considered and presents a summary cost-benefit analysis of 
each alternative. GIPSA then discusses the impact on small businesses.
Cost-Benefit Analysis of Sec.  201.3(a)
Regulatory Alternatives Considered
    Executive Order 12866 requires an assessment of costs and benefits 
of potentially effective and reasonably feasible alternatives to the 
planned rulemaking and an explanation of why the planned regulatory 
action is preferable to the potential alternatives. In the IFR, GIPSA 
considered three alternatives. The first alternative considered was to 
maintain the status quo and not finalize Sec.  201.3(a). The second 
alternative considered was to issue Sec.  201.3(a) as an IFR. The third 
alternative considered was to issue Sec.  201.3(a) as an IFR but exempt 
small businesses, as defined by the Small Business Administration, from 
having to comply with the rule. GIPSA chose the second alternative, to 
issue Sec.  201.3(a) as an IFR. The IFR announced GIPSA would add a 
paragraph to section 201.3 of the regulations addressing the scope of 7 
U.S.C. 192(a) and (b). After multiple delays of the effective date, the 
IFR was scheduled to become effective on October 19, 2017.
    In preparing this final rule, GIPSA initially considered four 
alternatives, as described in Section III above. After soliciting 
comments on the four alternatives, GIPSA is only further analyzing two 
of the alternatives, allowing the IFR to become effective (alternative 
1) and withdrawing the IFR (alternative 4). GIPSA is only further 
analyzing these two alternatives because all of the commenters who 
selected a preferred alternative selected alternatives 1 and 4, save 
one commenter. That commenter, as discussed in Section III, appears to 
have had a real preference for alternative 4.
    In analyzing these two alternatives, GIPSA used the same data and 
analysis as presented in the IFR. GIPSA used the

[[Page 48600]]

same data and analysis because only a relatively short period of time 
has elapsed since the economic analysis was conducted for the IFR. 
Therefore, the underlying facts and reasoning used in the estimates 
prepared for the IFR have not changed to any material extent. Also, 
because of the relatively short period of time since the publication of 
the IFR, the livestock and poultry industries have not had time to make 
significant changes in their structures, practices, or methodologies--
if they have made any changes. Moreover, GIPSA anticipated that many 
firms would take a ``wait and see'' approach and would not make 
significant changes to their operations or procurement practices until 
they were sure that the IFR would become effective.
    Given the multiple delays of the effective date of the IFR and the 
proposed rule seeking comments on the disposition of the IFR, GIPSA 
believes that few, if any, livestock and poultry producers and 
stakeholders changed their operations or procurement practices in 
reliance on the assumption that the IFR would become effective. In 
fact, no commenters on this proposed rule said they changed their 
operations or procurement practices, nor has GIPSA otherwise been made 
aware of anyone or any business making changes to their operations or 
procurement practices in reliance on the IFR's becoming effective. 
Therefore, the conditions in the livestock and poultry industries 
likely remain as they were when the IFR was published.
Alternative One: Allow the Interim Final Rule To Become Effective
    The costs and benefits described for alternative number two in the 
IFR, to finalize the IFR, equate to current alternative 1, allowing the 
IFR to become effective. In the absence of any action by GIPSA, the IFR 
will become effective on October 19, 2017, and the costs and benefits 
associated with the rule will start to be incurred once the IFR becomes 
effective. Although none of these costs or benefits associated with the 
IFR result under current practice, they will result from allowing the 
IFR to become effective. As such, GIPSA analyzed the post-regulatory 
world in preparing the regulatory analysis associated with the IFR as 
the best estimate of the legal status quo.
    As described in the IFR, given the applicability of the regulation 
to the livestock and poultry industries in their entirety, it was 
difficult to predict how those industries would respond. Therefore, in 
the IFR, GIPSA assigned a range to the expected costs of the 
regulation. At the lower boundary of the cost spectrum, GIPSA 
considered the scenario where the only costs were increased litigation 
costs and where there were no adjustments by the livestock and poultry 
industries to reduce their use of Alternative Marketing Agreements 
(AMA) or incentive pay systems--such as poultry grower ranking 
systems--and there were no changes to existing marketing or production 
contracts. For the upper boundary of the cost spectrum, GIPSA 
considered the scenario in which the livestock and poultry industries 
adjusted their use of AMAs and incentive pay systems and made 
systematic changes in its marketing and production contracts to reduce 
the threat of litigation.\66\
---------------------------------------------------------------------------

    \66\ GIPSA specifically looked at the following range of 
expected costs if the interim final rule became effective:
    A. Lower Boundary of Cost Spectrum-Litigation Costs of Preferred 
Alternative (81 FR 92578-92580).
    B. Lower Boundary-Ten-Year Total Costs of the Preferred 
Alternative (81 FR 92580-92581).
    C. Lower Boundary-Net Present Value of Ten-Year Total Costs of 
the Preferred Alternative (81 FR 92581).
    D. Lower Boundary-Annualized NPV of Ten-Year Total Costs of the 
Preferred Alternative (81 FR 92581).
    E. Upper Boundary of Cost Spectrum-Preferred Alternative (81 FR 
92581-92585).
    F. Upper Boundary-NPV of Ten-Year Total Costs of the Preferred 
Alternative (81 FR 92585).
    G. Upper Boundary-Annualized Costs of the Preferred Alternative 
(81 FR 92585).
    H. Sensitivity Analysis of the Upper Boundary (81 FR 92585).
    I. Range of Annualized Costs of the Preferred Alternative (81 FR 
92585-92586).
    J. Point Estimate of Annualized Costs of the Preferred 
Alternative (81 FR 92586).
    K. Sensitivity Analysis of Point Estimates of Annualized Costs 
(81 FR 92586-92587).
---------------------------------------------------------------------------

    GIPSA estimated the annualized costs of Sec.  201.3(a) to range 
from $6.87 million to $96.01 million at the three percent discount rate 
and from $7.12 million to $98.60 million at the seven percent discount 
rate. The range of potential costs is broad. GIPSA relied on its 
expertise to arrive at a point estimate range of expected annualized 
costs. GIPSA expected that the cattle, hog, and poultry industries 
would primarily take a ``wait and see'' approach to how courts would 
interpret Sec.  201.3(a), and the industries would only slightly adjust 
their use of AMA's and performance-based payment systems in the 
meantime. GIPSA estimated that the annualized cost of Sec.  201.3(a) 
would be $51.44 million at a three percent discount rate and $52.86 
million at a seven percent discount rate based on an anticipated ``wait 
and see'' approach and limited industry adjustments.
    Although GIPSA was unable to quantify the benefits of Sec.  
201.3(a), GIPSA determined that this rule did provide a qualitative 
benefit. The primary qualitative benefit would be broader protection 
and fair treatment for livestock producers, swine production contract 
growers, and poultry growers, which could lead to more equitable 
contracts. GIPSA contended that the enactment of Sec.  201.3(a) would 
allow for the increased ability to enforce the P&S Act for violations 
of 7 U.S.C. 192(a) and (b), which do not result in harm or likely harm 
to competition. GIPSA believed that increased enforcement actions would 
help in reducing the ability of packers, swine contractors, and live 
poultry dealers to monopolize or exercise market power. This, in turn, 
would help provide livestock producers, swine production contract 
growers, and poultry growers with some degree of negotiating power 
parity. GIPSA also believed that enforcement could serve as a deterrent 
to future violations of 7 U.S.C. 192(a) and (b).
Alternative Two: Withdraw the Interim Final Rule
    Withdrawing the IFR negates the $51.44 million with a range of 
$6.87 million to $96.01 million at a three percent discount rate and 
$52.86 million with a range of $7.12 million to $98.60 million at a 
seven percent discount rate in projected annualized costs described 
above that would be incurred should the IFR become effective. It also 
means that the qualitative benefit of Sec.  201.3(a)--broader 
protection and fair treatment for livestock producers, swine production 
contract growers, and poultry growers, which may lead to more equitable 
contracts are not expected to occur as a result of this rule. Instead, 
GIPSA expects that packers and live poultry dealers would continue with 
their current practices and that current rates of enforcement of the 7 
U.S.C. 192(a) and (b) would remain unchanged.
Cost-Benefit Comparison of Regulatory Alternatives
    Alternative 1, allowing the IFR to become effective, results in 
annualized costs estimated at $51.44 million with a range of $6.87 
million to $96.01 million at a three percent discount rate and $52.86 
million with a range of $7.12 million to $98.60 million at a seven 
percent discount rate. As stated above, GIPSA was unable to quantify 
the benefits of Sec.  201.3(a), but it did identify qualitative 
benefits of allowing the IFR to become effective. The primary 
qualitative benefit of this alternative was broader protection and fair 
treatment for livestock producers, swine production contract growers, 
and poultry growers, which may lead to

[[Page 48601]]

more equitable contracts. Benefits to the industries and the markets 
were projected to come from improvements to the parity of negotiating 
power and from increased enforcement serving as a deterrent to future 
violations. Upon further consideration of comments, the amount of 
increased enforcement may have been overestimated, because GIPSA was 
only enshrining in the rulemaking USDA's longstanding view that proof 
of likelihood of harm to competition is not required in all instances. 
Additionally, GIPSA's estimates were based on the assumption that all 
courts would enforce the IFR, ignoring the case law to the contrary. 
Notwithstanding an expected lack of deference by the Federal Circuits 
to the regulation, an increase in litigation is unavoidable in the 
livestock and poultry industries to not only interpret this regulation, 
but also to uphold it. This serves neither the interests of the 
livestock and poultry industries nor GIPSA.
    Alternative 2, withdrawing the IFR, would result in the benefit of 
eliminating the projected annualized costs of $51.44 million with a 
range of $6.87 million to $96.01 million at a three percent discount 
rate and $52.86 million with a range of $7.12 million to $98.60 million 
at a seven percent discount rate that would be incurred if the IFR 
became effective. These figures represent the cost savings from 
withdrawing the IFR, however, these savings come at the arguable cost 
of the qualitative benefit GIPSA identified in the IFR. The projected 
broader protection and fair treatment for livestock producers, swine 
production contract growers, and poultry growers, which might possibly 
lead to more equitable contracts, will be lost.
    Having considered both alternatives, GIPSA believes that 
alternative 2, withdrawing the IFR, is the best option.
Regulatory Flexibility Act Analysis of Withdrawing the Interim Final 
Rule
    The Small Business Administration (SBA) defines small businesses by 
their North American Industry Classification System Codes (NAICS).\67\ 
SBA considers broiler and turkey producers and swine contractors, NAICS 
codes 112320, 112330, and 112210 respectively, to be small businesses 
if sales are less than $750,000 per year. Live poultry dealers, NAICS 
311615, are considered small businesses if they have fewer than 1,250 
employees. Beef and pork packers, NAICS 311611, are defined as small 
businesses if they have fewer than 1,000 employees.
---------------------------------------------------------------------------

    \67\ See: http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
---------------------------------------------------------------------------

    The Regulatory Flexibility Analysis in the IFR published on 
December 20, 2016, analyzed the impact of enacting the IFR on small 
businesses (81 FR 92591-92594). As part of the analysis, GIPSA 
identified the approximate number of entities subject to the IFR that 
were small businesses and analyzed the costs for those small businesses 
to implement Sec.  201.3(a), both in the first full year of 
implementation (at that time 2017), and annualized over a ten-year 
period. Because of the relatively short period of time since the 
publication of the IFR, the numbers of subject entities that are small 
businesses have not appreciably changed; therefore, the same number of 
entities that were small businesses that would have been impacted by 
implementing the IFR are the same entities that would be impacted by 
withdrawing the IFR.
    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. GIPSA estimated that 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.
    Based on U.S. Census data on county business patterns, in 2013, 
there were approximately 59 live poultry dealers employing fewer than 
1,250 people each, which would have been classified as small 
businesses. GIPSA records for 2014 indicated there were 21,925 poultry 
production contracts in effect, of which 13,370, or 61 percent, were 
held by the largest six live poultry dealers, and 90 percent (19,673) 
were held by the largest 25 firms. These 25 firms are all in the large 
business SBA category, whereas the 21,925 poultry growers holding the 
other end of the contracts are almost all small businesses by SBA's 
definitions. GIPSA determined that poultry dealers classified as large 
businesses are responsible for about 89.7 percent of the costs on 
poultry contracts and therefore, by extension, small businesses would 
be responsible for 10.3 percent of the costs. GIPSA records, as of June 
2016, included 227 firms reporting the slaughter of hogs. Of these, 219 
would be classified as small businesses. GIPSA estimated that small 
businesses accounted for approximately 17.8 percent of the hogs 
slaughtered in 2015. For that same year, GIPSA records, included 293 
firms reporting the slaughter of cattle. Of these, 287 would be 
classified as small businesses.
    As discussed earlier, because of the relatively short period of 
time since the publication of the IFR, the livestock and poultry 
industries have not changed their structures, practices, or 
methodologies. Also, GIPSA correctly predicted that many firms would 
take a ``wait and see'' approach and would not want to make significant 
changes to their operations or procurement practices until they were 
sure that the IFR would become effective. Consequently, no small 
businesses should incur any costs from the IFR's withdrawal.
    Based on this analysis, GIPSA certifies that withdrawal of the IFR 
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.).

C. Executive Order 12988

    GIPSA reviewed this final rule under Executive Order 12988, Civil 
Justice Reform. This action is not intended to have retroactive effect 
nor will it 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 before any 
judicial challenge to this final rule. Nothing in this final rule is 
intended to interfere with a person's right to enforce liability 
against any person subject to the P&S Act under authority granted in 
section 308 of the P&S Act.

D. Executive Order 13175

    GIPSA reviewed this final rule 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.
    Although GIPSA has assessed the impact of this final rule on Indian 
tribes and determined that this final rule does not, to its knowledge, 
have tribal implications that require tribal consultation under 
Executive Order

[[Page 48602]]

13175, GIPSA offered opportunities to meet with representatives from 
Tribal Governments during the comment period for the June 2010 NPRM 
(June 22 to November 22, 2010) with specific opportunities in Rapid 
City, South Dakota, on October 28, 2010, and Oklahoma City, Oklahoma, 
on November 3, 2010. GIPSA invited all tribal governments to 
participate in these venues for consultation. GIPSA has received no 
specific indication that the final rule will have tribal implications 
and has received no further requests for consultation as of the date of 
this publication. If a Tribe requests consultation, GIPSA will work 
with the Office of Tribal Relations to ensure meaningful consultation 
is provided where changes, additions, and modifications herein are not 
expressly mandated by Congress.

E. Paperwork Reduction Act

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

F. E-Government Act Compliance

    GIPSA is committed to compliance with the E-Government Act, to 
promote the use of the internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes.

List of Subjects in 9 CFR Part 201

    Contracts, Livestock, Poultry, Trade practices.

0
Accordingly, the interim final rule amending 9 CFR Part 201 that was 
published at 81 FR 92566-92594 on December 20, 2016, is withdrawn.

Randall D. Jones,
Acting Administrator, Grain Inspection, Packers and Stockyards 
Administration.

[FR Doc. 2017-22593 Filed 10-17-17; 8:45 am]
 BILLING CODE 3410-KD-P



                                             48594            Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations

                                             DEPARTMENT OF AGRICULTURE                                192(a) and (b). Below is the basis for this           date of the IFR to April 22, 2017. The
                                                                                                      decision. The first section provides                  notice also extended the deadline for
                                             Grain Inspection, Packers and                            background on the interim final rule                  submitting comments to March 24,
                                             Stockyards Administration                                and on the proposed rule disposing of                 2017. The delay and extension were
                                                                                                      the interim final rule. The second and                consistent with the memorandum of
                                             9 CFR Part 201                                           third sections discuss the public                     January 20, 2017, to the heads of
                                             RIN 0580–AB28
                                                                                                      comments GIPSA received on the                        executive departments and agencies
                                                                                                      interim final rule and the proposed rule,             from the Assistant to the President and
                                             Scope of Sections 202(a) and (b) of the                  respectively. The fourth section                      Chief of Staff entitled ‘‘Regulatory
                                             Packers and Stockyards Act                               discusses GIPSA’s action, the                         Freeze Pending Review.’’
                                                                                                      justification for that action, and                       On April 12, 2017, GIPSA published
                                             AGENCY:  Grain Inspection, Packers and                   responds to the comments received. The                a notice in the Federal Register (82 FR
                                             Stockyards Administration, USDA                          last section provides the required                    17531) delaying the effective date for
                                             ACTION: Final rule; withdrawal.                          impact analyses, including the                        the IFR for an additional 180 days, from
                                                                                                      Regulatory Flexibility Act, the                       March 24, 2017, to October 19, 2017.
                                             SUMMARY:    The United States Department                 Paperwork Reduction Act, and the                      This extension allowed additional time
                                             of Agriculture’s (USDA) Grain                            relevant Executive Orders.                            for USDA to consider adequately all
                                             Inspection, Packers and Stockyards                                                                             comments received and to make an
                                             Administration (GIPSA), Packers and                      I. Background
                                                                                                                                                            informed policy decision.
                                             Stockyards Program is withdrawing the                       The P&S Act at 7 U.S.C. 192(a) states
                                                                                                                                                               Concurrent with this notice, GIPSA
                                             interim final rule (IFR) published in the                that it is unlawful for any packer, swine
                                                                                                                                                            published in the Federal Register (82
                                             Federal Register on December 20, 2016.                   contractor, or live poultry dealer to
                                                                                                                                                            FR 17594) a proposed rule presenting
                                             Had the IFR become effective, it would                   ‘‘[e]ngage in or use any unfair, unjustly
                                                                                                                                                            four alternatives for disposing the IFR:
                                             have added a paragraph to the                            discriminatory, or deceptive practice or
                                                                                                                                                            (1) Allow the interim final rule to
                                             regulations issued under the Packers                     device.’’ Further, section 192(b)
                                                                                                                                                            become effective, (2) suspend the
                                             and Stockyards Act (P&S Act)                             provides that it is unlawful for those
                                                                                                                                                            interim final rule indefinitely, (3) delay
                                             addressing the scope of sections 202(a)                  same types of business entities to
                                                                                                      ‘‘[m]ake or give any undue or                         the effective date of the interim final
                                             and (b) of the P&S Act, which
                                                                                                      unreasonable preference or advantage to               rule further, or (4) withdraw the interim
                                             enumerate unlawful practices under the
                                                                                                      any particular person or locality in any              final rule. The proposed rule gave
                                             Act. Specifically, the IFR would have
                                                                                                      respect, or subject any particular person             interested persons until June 12, 2017,
                                             added a paragraph to the regulations
                                                                                                      or locality to any undue or unreasonable              to comment on the four alternatives.
                                             further explaining the scope of sections
                                                                                                      prejudice or disadvantage in any                         GIPSA has analyzed the comments
                                             202(a) and (b) of the P&S Act such that
                                                                                                      respect.’’ In the June 22, 2010 Federal               received on the interim final rule
                                             certain conduct or actions, depending
                                                                                                      Register (75 FR 35338–35354), GIPSA                   published on December 20, 2016. It has
                                             on their nature and the circumstances,
                                                                                                      published a notice of proposed                        also evaluated the comments received in
                                             could be found to violate the P&S Act
                                                                                                      rulemaking (NPRM) that would make                     response to the proposed rule published
                                             without a finding of harm or likely harm
                                                                                                      several revisions to the regulations                  on April 12, 2017, regarding disposition
                                             to competition.
                                                                                                      implementing the P&S Act, including                   of that rule. Now, GIPSA is withdrawing
                                                GIPSA accepted and analyzed
                                                                                                      one revision that would add a paragraph               the interim final rule.
                                             comments on the IFR received on or
                                             before March 24, 2017. In addition, in                   (c) to 9 CFR 201.3 to codify the agency’s             II. Interim Final Rule—Discussion of
                                             the April 12, 2017 Federal Register,                     longstanding interpretation that, in                  Comments
                                             GIPSA solicited and analyzed comments                    some cases, a violation of 7 U.S.C.
                                                                                                      192(a) or (b) can be established without                 GIPSA solicited comments concerning
                                             received on or before June 12, 2017, on
                                                                                                      proof of likelihood of competitive                    the IFR for a period of 90 days ending
                                             four alternative actions regarding the
                                                                                                      injury. 75 FR at 35340; see also id. at               on March 24, 2017. GIPSA received 344
                                             disposition of the IFR. After careful
                                                                                                      35351 (proposed rule text for § 201.3(c)).            timely comments. Commenters were
                                             review and consideration of all
                                                                                                      GIPSA originally set the comment                      from all sectors of the livestock and
                                             comments received, GIPSA is
                                                                                                      period for the NPRM to close on August                poultry industries, including livestock
                                             withdrawing the IFR.
                                                                                                      23, 2010, and later extended it until                 producer groups; poultry grower interest
                                             DATES: The interim final rule published                                                                        groups; packers; poultry company
                                                                                                      November 22, 2010 (75 FR 44163).
                                             on December 20, 2016 (81 FR 92566), is                                                                         associations; farmers and farmers’
                                                                                                         The appropriations acts for fiscal
                                             withdrawn as of October 18, 2017.                                                                              organizations; consumer organizations
                                                                                                      years 2012 through 2015 precluded
                                             FOR FURTHER INFORMATION CONTACT:                         USDA from finalizing the NPRM,                        and consumers; and an animal rights
                                             S. Brett Offutt, Director, Litigation and                including the proposed § 201.3(c). The                group.
                                             Economic Analysis Division, Packers                      appropriations acts for fiscal years 2016                A common theme of those opposed to
                                             and Stockyards Program, GIPSA, 1400                      and 2017, however, did not include this               the IFR was that it would lead to
                                             Independence Ave. SW., Washington,                       preclusion. Accordingly, on December                  increased litigation. Commenters said
                                             DC 20250–3601, (202) 720–7051,                           20, 2016, GIPSA published in the                      that without the requirement to show
                                             s.brett.offutt@usda.gov.                                 Federal Register (81 FR 92566–92594)                  harm to competition, the IFR would
                                             SUPPLEMENTARY INFORMATION: GIPSA is                      an interim final rule (IFR) adopting                  embolden producers and growers to sue
                                             issuing this final rule to withdraw the                  essentially the same language in                      for any perceived slight by a packer or
                                                                                                                                                            integrator. Fear of litigation would cause
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                                             interim final rule that would have                       proposed § 201.3(c) as § 201.3(a). GIPSA
                                             revised the current regulations                          invited interested persons to submit                  packers and integrators to vertically
                                             implementing the P&S Act to state that                   comments on the IFR on or before its                  integrate further, increase their volume
                                             a finding of harm or likely harm to                      effective date of February 21, 2017.                  of captive supplies, and rely even more
                                             competition was not needed to find a                        On February 7, 2017, GIPSA                         on those suppliers and growers they
                                             violation of section 202(a) or (b) of that               published in the Federal Register (82                 currently use. Therefore, these
                                             Act (7 U.S.C. 181–229c). See 7 U.S.C.                    FR 9489) a notice delaying the effective              commenters suggested the IFR would


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                                                              Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations                                       48595

                                             result in new suppliers being shut out                   they noted that GIPSA failed to show                  investments because of unfair,
                                             of markets.                                              that its interpretation was in fact a                 deceptive, and/or retaliatory practices.
                                                A major poultry trade association said                longstanding one. They argued that this               Support for the IFR was also rooted in
                                             that the IFR failed to describe what                     failure undermined the argument that                  the belief that requiring harm to
                                             conduct or actions would constitute a                    the courts should defer to GIPSA’s                    competition was an impossibly high
                                             violation of the P&S Act with sufficient                 interpretation.                                       standard for individual farmers to meet.
                                             clarity for people to understand                            Commenters opposed to the IFR also                    These commenters said increased
                                             prohibited or permitted conduct or                       said that it would discourage incentives,             concentration and imbalances of power
                                             actions and that this ambiguity would                    premiums, and payment plans offering                  in the marketplace facilitate abuse. They
                                             lead to arbitrary and discriminatory                     price differentials to producers or                   argued that small family farmers should
                                             enforcement. It said that the IFR is not                 growers for supplying higher quality                  not have to compete with one another
                                             entitled to deference because, among                     product or greater production efficiency.             because of the strong hold corporate and
                                             other things, the plain language of 7                    They claimed that the ambiguity of the                commercial farms and packers have on
                                             U.S.C. 192(a) and (b) requires a showing                 terms used in the IFR would encourage                 the agricultural sector. One commenter
                                             of competitive injury. Finally, it noted                 limiting or abandoning alternative                    emphasized that it was unfair, unjustly
                                             that, although the Department of Justice                 marketing arrangements that provide                   discriminatory, or unduly preferential to
                                             (DOJ) filed amicus briefs with several                   compensation that is both certain and                 require poultry growers to participate in
                                             appellate courts arguing against the                     necessary for producers to use in                     a compensation system in which
                                             need to show competitive harm, DOJ’s                     making financial investments.                         growers do not have full control over
                                             legal arguments failed to sway those                        Self-identified contract growers for a             their production inputs. They said
                                             courts’ decisions.                                       major poultry company provided                        production inputs can be manipulated
                                                A livestock packing industry                          similar comments, saying that the IFR                 to the detriment of disfavored growers;
                                             association pointed out that the                         was not in the best interests of contract             and because there are limited
                                             Administrative Procedure Act (APA) (5                    poultry growers, poultry companies, or                contracting options, growers may not
                                             U.S.C. 551–559) requires the public to                   consumers. They said that the pay                     have the means to challenge abuses.
                                             have an opportunity to comment timely                    system used in the poultry industry                   Thus, family farmers face unfair
                                             on proposed rules. Because the                           encouraged innovation and investment                  practices because corporate
                                             substance of the IFR was part of the June                in the best practices and equipment.                  concentration leads to power
                                             2010 NPRM, this commenter believed                       They predicted that the IFR might lead                imbalances and this growing corporate
                                             the rulemaking record was ‘‘stale’’ and                  to changes to the pay system by                       concentration leaves consumers with
                                             said that GIPSA should have re-opened                    removing incentives for innovation and                fewer choices in the grocery stores.
                                             the comment period to refresh the                        investment, resulting in the U.S. poultry                Supporters of the IFR also said it
                                             rulemaking record or have terminated                     industry becoming less competitive in                 provided common-sense protections for
                                             the rulemaking proceeding. Further,                      global markets and threatening jobs here              farmers. They argued that the purpose of
                                             having failed to do so, GIPSA should                     in the U.S.                                           the P&S Act was to protect farmers from
                                             not be entitled to deference.                               A large poultry processing and                     unfair treatment by companies and not
                                                Two trade associations representing                   livestock slaughtering corporation,                   just from anticompetitive practices.
                                             the pork and beef industries also                        along with many of its individual                     They said that the IFR simply ensured
                                             opposed the IFR. These commenters                        employees submitting form letters, said               that farmers could challenge unfair
                                             said that GIPSA failed to identify                       that GIPSA failed to prove the IFR was                treatment without having to bring a
                                             specific systemic problems needed to                     economically justified. The corporation               federal antitrust case. One commenter
                                             justify it. Although GIPSA provided                      argued that protection of competition                 stated that as long as competitive injury
                                             examples of conduct or actions that                      must be the ‘‘underpinning’’ of a                     is the law there is no deterrent
                                             could be challenged under the IFR, they                  regulation issued under the P&S Act and               preventing companies from treating an
                                             said that GIPSA provided no evidence                     that GIPSA’s competition-related                      individual farmer as it wishes.
                                             that the referenced conduct or actions                   justifications for the IFR were
                                             occur in the pork or beef industries,                    insufficient because the agency: (1)                  III. Disposition of the Interim Final
                                             and, therefore, it was not clear if these                Failed to sufficiently cite economic                  Rule—Discussion of Comments
                                             problems occur in those industries. If                   studies to demonstrate that there is an                  In the April 12, 2017 proposed rule,
                                             problems existed, they felt that GIPSA                   imbalance of market power between                     GIPSA stated that there were significant
                                             should have tailored the rule to address                 livestock producers and poultry growers               policy and legal issues addressed within
                                             those problems instead of issuing one                    and (2) failed to show that regulated                 the IFR that warranted further review by
                                             that was over-inclusive and impacted                     entities have an incentive to treat                   USDA. For these reasons, the proposed
                                             the entire meat industry.                                livestock producers and poultry growers               rule requested public comments on four
                                                These commenters also said that                       in a manner that results in a lower                   alternative actions that USDA could
                                             GIPSA failed to address adequately the                   supply of growers willing to contract.                take with regard to the disposition of the
                                             judicial decisions interpreting 7 U.S.C.                 Moreover, this corporation claimed that               IFR. The four alternatives listed in the
                                             192 that ran counter to the IFR. They                    the cost to the industry of the IFR would             proposed rule were as follows: (1) Allow
                                             said that court decisions held that the                  be $1 billion over the next decade,                   the IFR to become effective; (2) suspend
                                             words used in 7 U.S.C. 192, such as                      without specific quantifiable benefit.                the IFR indefinitely; (3) further delay
                                             ‘‘unfair’’ and ‘‘unjust,’’ came from other                  Supporters of the IFR included                     the effective date of the IFR; or (4)
                                             antitrust statutes and reasoned their                    individual livestock producers, poultry               withdraw the IFR. The proposed rule
                                             anti-competitive meaning transferred                     growers, and farmers’ organizations.
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                                                                                                                                                            gave interested persons until June 12,
                                             over to the P&S Act. They said that                      They pointed to the hundreds of                       2017, to comment on the four
                                             GIPSA also failed to argue against the                   thousands or millions of dollars farmers              alternative actions.
                                             conclusion drawn by multiple courts                      invest to grow or produce for a                          USDA received 1,951 timely
                                             that the legislative history of the P&S                  company. Many expressed their belief                  comments. Of those comments, 1,466
                                             Act shows that Congress intended § 192                   that farmers need the IFR’s protection to             preferred alternative 4 (i.e., to withdraw
                                             to require competitive injury. Finally,                  avoid losing their operations and their               the IFR). Another 469 preferred


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                                             48596            Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations

                                             alternative 1 (i.e., to allow the IFR to                 P&S Act for decades.1 DOJ has filed                      authority.’’ 5 Moreover, even if a court
                                             become effective as planned). One                        amicus briefs with several federal                       has spoken as to the interpretation of a
                                             commenter preferred alternative 2 (i.e.,                 appellate courts arguing against the                     statute, ‘‘[a] court’s prior judicial
                                             to suspend the IFR indefinitely). This                   need to show the likelihood of                           construction of a statute trumps an
                                             commenter, however, also said that                       competitive harm for all violations of 7                 agency construction otherwise entitled
                                             GIPSA should ‘‘allow the rule to die,’’                  U.S.C. 192(a) and (b).2                                  to Chevron deference only if the prior
                                             possibly indicating a real preference for                   However, as commenters have noted                     court decision holds that its
                                             alternative 4, withdrawal, as opposed to                                                                          construction follows from the
                                                                                                      and GIPSA acknowledges, several
                                             an indefinite suspension. No one voiced                                                                           unambiguous terms of the statute and
                                                                                                      federal appellate courts have declined to
                                             a preference for alternative 3 (i.e., to                                                                          thus leaves no room for agency
                                                                                                      defer to USDA’s interpretation (see
                                             further delay the IFR’s effective date).                                                                          discretion.’’ 6
                                                                                                      discussion of cases below). There is                        In the IFR, GIPSA acknowledged that
                                             Fifteen individuals provided comments                    good reason to believe that several of
                                             on the proposed rule but did not state                                                                            multiple federal circuit courts had held
                                                                                                      those courts would continue to do so                     that harm to competition is required to
                                             a preference.                                            even if USDA’s interpretation were                       prove violations of 7 U.S.C. 192(a) and
                                                Many commenters who provided                          codified in a final rule.                                (b). For example, in the Eleventh Circuit
                                             comments on the IFR also provided
                                                                                                         When determining whether an                           case of London v. Fieldale Farms Corp.,7
                                             comments on this proposed rule,
                                                                                                      agency’s interpretation of a statute that                the plaintiffs alleged that defendant
                                             making largely the same arguments.
                                                                                                      it administers is entitled to deference,                 impermissibly terminated plaintiffs’
                                             Supporters of withdrawal were again                                                                               contract.8 The court held that plaintiffs’
                                                                                                      the Supreme Court explained in
                                             concerned about increased litigation                                                                              failure to allege harm to competition
                                                                                                      Chevron, U.S.A., Inc. v. Natural
                                             and vertical integration, reduction or                                                                            was fatal to their 7 U.S.C. 192(a) claim.9
                                                                                                      Resources Defense Council, Inc.,3 that
                                             elimination of alternative marketing                                                                              The court stated that ‘‘in order to prevail
                                                                                                      courts look at whether Congress has
                                             agreements, and decreased market                                                                                  under the [P&S Act], a plaintiff must
                                                                                                      directly spoken to the precise question
                                             access for producers and growers. Those                                                                           show that the defendant’s deceptive or
                                             favoring the IFR reiterated their concern                at issue. If the intent of Congress is
                                                                                                      clear, that is the end of the matter; the                unfair practice adversely affects
                                             that increased concentration led to                                                                               competition or is likely to adversely
                                             unfair practices and undue preferences                   court, as well as the agency, must give
                                                                                                      effect to the unambiguously expressed                    affect competition.’’ 10
                                             against farmers. They believed that the                                                                              In the Tenth Circuit case of Been v.
                                             IFR provided farmers the tools to                        intent of Congress. If, however, the court
                                                                                                      determines that Congress has not                         O.K. Industries, Inc.,11 the plaintiffs,
                                             address unfair practices and undue                                                                                who were growers, alleged that a variety
                                             preferences.                                             directly addressed the precise question
                                                                                                      at issue, the court does not simply                      of defendants’ actions with respect to
                                             IV. Justification for Withdrawal of the                  impose its own construction on the                       the growers’ contracts were unfair.12
                                             Interim Final Rule and Response to                       statute, as would be necessary in the                    The court concluded that plaintiffs must
                                             Comments                                                 absence of an administrative                             show that defendants’ conduct harmed
                                                                                                      interpretation. Rather, if the statute is                or was likely to harm competition under
                                               After reviewing the IFR and carefully                  silent or ambiguous with respect to the                  7 U.S.C. 192(a) stating:
                                             considering the public comments,                         specific issue, the question for the court                 We are concerned here only with whether
                                             GIPSA is withdrawing the IFR because                     is whether the agency’s answer is based                  unfairness requires a showing of a likely
                                             of serious legal and policy concerns                     on a permissible construction of the                     injury to competition, not whether deceptive
                                             related to its promulgation and                          statute.4                                                practices require such a showing. We
                                             implementation. First, the interpretation                                                                         therefore join the [sic] those circuits
                                             of 7 U.S.C. 192(a)–(b) embodied in the                      The courts have granted Chevron                       requiring a plaintiff who challenges a
                                             IFR is inconsistent with court decisions                 deference ‘‘when it appears that                         practice under § [192(a)] to show that the
                                                                                                      Congress delegated authority to the                      practice injures or is likely to injure
                                             in several U.S. Courts of Appeals, and                                                                            competition.13
                                             those circuits are unlikely to give                      agency generally to make rules carrying
                                             GIPSA’s proposed interpretation                          the force of law, and that the agency                       In the Fifth Circuit case of Wheeler v.
                                             deference. Additionally, the IFR’s                       interpretation claiming deference was                    Pilgrim’s Pride Corp.,14 the plaintiffs
                                             justification for dispensing with notice                 promulgated in the exercise of that                      alleged that one grower wrongfully
                                             and comment for ‘‘good cause’’ was                                                                                received superior contract terms and
                                             inadequate to satisfy the APA’s                             1 E.g., In re Ozark County Cattle Co., 49 Agric.      that the disparity was unfair and
                                                                                                      Dec. 336, 365 (1990); In re Rodman, 47 Agric. Dec.       deceptive under 7 U.S.C. 192(a) and
                                             requirements.                                            885, 912–13 (1988); In re Itt Cont’l Baking Co., 44
                                                                                                      Agric. Dec. 748, 781 (1985) (citing Packers and
                                                                                                                                                               (b).15 The en banc court rejected this
                                             A. Courts Are Unlikely To Give                                                                                    argument, finding ‘‘[t]o support a claim
                                                                                                      Stockyards cases from 1957 through 1983); c.f.
                                             Deference to the Interim Final Rule                      Sioux City Stock Yards Co. v. United States, 49 F.
                                                                                                      Supp. 801, 806 (N.D. Iowa 1943) (‘‘[T]he statute,          5 Mayo Found. for Medical Educ. and Res. v.
                                                The purpose of the IFR was to clarify                 neither expressly nor impliedly, makes any [finding      United States, 562 U.S. 44, 45 (2011) (quoting
                                             that conduct or actions may violate 7                    that a market injury was being threatened] a             United States v. Mead Corp., 533 U.S. 218, 226–27
                                             U.S.C. 192(a) and (b) without adversely                  jurisdictional prerequisite to the Secretary’s power     (2001)).
                                                                                                      to act.’’); In re:Macy Live Poultry Co, 1 Agric. Dec.      6 Nat’l Cable & Telecomm. Ass’n v. Brand X
                                             affecting, or having a likelihood of                     479 (1942) (finding proof of weight fraud alone          Internet Serv., 545 U.S. 967, 982 (2005) (emphasis
                                             adversely affecting, competition. This                   sufficient to sanction a live poultry dealer).           added).
                                             reiterated USDA’s longstanding                              2 E.g., Brief for Amicus Curiae the United States       7 410 F.3d 1295 (11th Cir. 2005).
                                             interpretation that not all violations of                of America in Support of Plaintiff-Appellant, Terry        8 Id.
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                                             the P&S Act require a showing of harm                    v. Tyson Farms, Inc., 604 F.3d 272 (6th Cir. 2010)         9 Id. at 304.
                                                                                                      (No. 08–5577), 2008 WL 5665508 at 11–26; En Banc
                                             or likely harm to competition.                           Brief for Amicus Curiae the United States of
                                                                                                                                                                 10 Id.
                                                                                                                                                                 11 495 F.3d 1217 (10th Cir. 2007).
                                                Contrary to comments that GIPSA                       America in Support of Plaintiffs-Appellees, Wheeler
                                                                                                                                                                 12 Id. at 1223.
                                                                                                      v. Pilgrim’s Pride Corp., 591 F.3d 355 (5th Cir. 2009)
                                             failed to show that USDA’s                               (No. 07–40651), 2009 WL 7349991 at 9–29.                   13 Id. at 1230.
                                             interpretation was longstanding, USDA                       3 467 U.S. 837 (1984).                                  14 591 F.3d 355 (5th Cir. 2009).
                                             has adhered to this interpretation of the                   4 Id. at 842–43 (endnotes omitted).                     15 Id. at 357.




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                                                              Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations                                              48597

                                             that a practice violates subsection (a) or                  Commenters supporting the IFR cited                the bidding for cattle.30 While the IBP
                                             (b) of § 192 there must be proof of                      the current court precedent as                        court did not agree with the Judicial
                                             injury, or likelihood of injury, to                      justification for its promulgation. They              Officer’s factual findings, the court
                                             competition.’’ 16                                        said showing harm to competition was                  agreed that the legal standard the
                                                In the Sixth Circuit case of Terry v.                 a difficult standard to meet; and as long             Judicial Officer applied was the correct
                                             Tyson Farms, Inc.,17 the plaintiff                       as it remains a requirement, growers and              one: ‘‘[w]e have said that ‘a practice
                                             alleged, among other things, that the                    producers would continue to be                        which is likely to reduce competition
                                             defendant poultry company cancelled                      subjected to unfair business practices,               and prices paid to farmers for cattle can
                                             his contract because plaintiff asserted                  and their businesses would be at risk.                be found an unfair practice under the
                                             his regulatory right to observe the                      GIPSA agreed with this view when it                   Act, and be a predicate for a cease and
                                             weighing of his birds.18 He claimed this                 promulgated the IFR; however, current                 desist order.’ ’’ 31
                                             violated 7 U.S.C. 192(a) and (b).19 The                  precedent poses a significant legal issue.              Likewise, in the Ninth Circuit case of
                                             court disagreed and held that ‘‘in order                 As discussed above, the courts only                   De Jong Packing Co. v. USDA,32 the
                                             to succeed on a claim under § 192(a)                     grant Chevron deference to an agency’s                appellate court agreed that collusion to
                                             and (b) of the [P&S Act], a plaintiff must               interpretation of a statute under its                 force conditional bidding on livestock
                                             show an adverse effect on                                purview when the statute is ambiguous                 auctions was anti-competitive in nature
                                             competition.’’ 20 The Terry court cited                  and the agency’s interpretation is                    holding:
                                             cases from sister circuits, and claimed                  reasonable.27                                            The government contends that the purpose
                                             that seven of the circuits agreed with its                  If the IFR becomes effective, it will              of the Act is to halt unfair trade practices in
                                             legal conclusion.21 The Terry court also                 conflict with Fifth, Sixth, Tenth, and                their incipiency, before harm has been
                                             claimed that this ‘‘tide’’ of opinions                   Eleventh Circuit precedent. This                      suffered; that unfair practices under [7 U.S.C.
                                             from other circuits has ‘‘now become a                                                                         192] are not confined to those where
                                                                                                      conflict creates serious concerns. GIPSA
                                             tidal wave.’’ 22                                                                                               competitive injury has already resulted, but
                                                                                                      is cognizant of the commenters who                    includes those where there is a reasonable
                                                Many commenters argued that the                       support this IFR becoming effective and               likelihood that the purpose will be achieved
                                             plain language of the P&S Act requires                   of their concerns regarding a perceived               and that the result will be an undue restraint
                                             competitive injury and that GIPSA                        imbalance of bargaining power. Also,                  of competition. We agree.33
                                             therefore is not entitled to deference for               GIPSA recognizes that the livestock and
                                             a conflicting regulation. GIPSA                                                                                   Other courts have only required a
                                                                                                      poultry industries have a vested interest             showing of harm or likelihood of harm
                                             recognizes that at least two federal                     in knowing what conduct or actions
                                             circuits are unlikely to defer to USDA’s                                                                       to competition for the conduct or action
                                                                                                      violate 7 U.S.C. 192(a) and (b). However,             at issue without generalizing their
                                             interpretation. In the Fifth Circuit, the                a regulation conflicting with relevant
                                             Wheeler court said that ‘‘deference . . .                                                                      holdings to all violations of 7 U.S.C.
                                                                                                      Circuit precedent will inevitably lead to             192(a) and (b). In the Fourth Circuit case
                                             is unwarranted where Congress has                        more litigation in the livestock and
                                             delegated no authority to change the                                                                           of Philson v. Goldsboro Mill Co.,34 the
                                                                                                      poultry industries. Protracted litigation             plaintiff turkey growers claimed their
                                             meaning the courts have given to the                     to both interpret this regulation and
                                             statutory terms . . . .’’ 23 The court held                                                                    contract was terminated in retaliation
                                                                                                      defend it serves neither the interests of             for ‘‘vocalization of their grievances’’
                                             USDA was not entitled to deference                       the livestock and poultry industries nor
                                             ‘‘because the PSA is unambiguous.’’ 24                                                                         and that defendant’s conduct was,
                                                                                                      GIPSA.                                                among other things, an unfair or
                                             Likewise, the Eleventh Circuit refused
                                                                                                         To be sure, some commenters                        deceptive practice in violation of the
                                             to defer to USDA stating, ‘‘[t]his court
                                                                                                      overstated the hostility in the case law              P&S Act.35 The court held that, while ‘‘it
                                             gives Chevron deference to agency
                                                                                                      to USDA’s longstanding position.                      is unnecessary to prove actual injury to
                                             interpretations of regulations
                                                                                                      Contrary to some commenters’ claims,                  establish an unfair or deceptive practice
                                             promulgated pursuant to congressional
                                                                                                      GIPSA disagrees that the remaining U.S.               [under 7 U.S.C. 192(a) and (b)], a
                                             authority. The [P&S Act] does not
                                                                                                      Circuit Courts of Appeals that have had               plaintiff must nonetheless establish that
                                             delegate authority to the Secretary to
                                                                                                      occasion to address the issue (Fourth,                the challenged act is likely to produce
                                             adjudicate alleged violations of [7 U.S.C.
                                                                                                      Seventh, Eighth, and Ninth Circuits)                  the type of injury that the Act was
                                             192] by live poultry dealers. Congress
                                                                                                      have gone as far as London, Been,                     designed to prevent.’’ 36 Thus, the court
                                             left that task exclusively to the federal
                                                                                                      Wheeler, and Terry, to declare that harm              held that the district court did not err
                                             courts.’’ 25 It went on to say that
                                                                                                      or likelihood of harm to competition is               in instructing the jury that plaintiff must
                                             ‘‘[b]ecause Congress plainly intended to
                                                                                                      required in all cases brought under 7                 prove that ‘‘the defendants’ conduct was
                                             prohibit only those unfair,
                                                                                                      U.S.C. 192(a) and (b).                                likely to affect competition adversely in
                                             discriminatory or deceptive practices
                                             adversely affecting competition a                           Some courts affirmed the position of               order to prevail on their claims under
                                             contrary interpretation of [7 U.S.C.                     the USDA that certain practices are                   the Packers and Stockyard Act.’’ 37
                                             192(a)] deserves no deference.’’ 26                      unfair because they are likely to harm                   In the Seventh Circuit case of Pacific
                                                                                                      competition. In the Eighth Circuit case               Trading Co. v. Wilson & Co.,38 the
                                               16 Id. at 363.                                         of IBP v. Glickman,28 the USDA brought                plaintiffs claimed that the defendant
                                               17 604  F.3d 272 (6th Cir. 2010).                      an action against a packer respondent                 packers had knowingly delivered ‘‘off
                                               18 Id. at 274.                                         for alleged unlawful use of the packer’s
                                               19 Id. at 277.                                         right of first refusal.29 Among other                   30 Id. at 976.
                                                                                                                                                              31 Id. at 977 (quoting Farrow v. USDA, 760 F.2d
                                               20 Id. at 279.
                                                                                                      things, the USDA’s Judicial Officer
                                               21 Id. at 277–79 (citing cases from the Fourth,                                                              211, 214 (8th Cir. 1985)) (emphasis added in IBP).
                                                                                                      ruled that there was potential harm to                  32 618 F.2d 1329 (9th Cir. 1980).
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                                             Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh
                                             Circuits and electing to join those circuits).
                                                                                                      competition based on the allegation that                33 Id. at 1336–37.
                                               22 Id. at 277.                                         the respondent was not participating in                 34 164 F.3d 625, Nos. 96–2542, 96–2631, 1998 WL
                                               23 Wheeler v. Pilgrim’s Pride Corp., 591 F.3d 355,                                                           709324 (4th Cir. Oct. 5, 1998).
                                             362 (5th Cir. 2009).                                       27 Chevron, U.S.A., Inc. v. Nat. Resources Def.       35 Id. at *2.
                                               24 Id. at 373 n.3.                                     Council, Inc., 467 U.S. 837, 842–43 (1984).             36 Id. at *4 (emphasis in original).
                                               25 Id. at 1304 (internal citations omitted).             28 187 F.3d 974 (8th Cir. 1999).                      37 Id.
                                               26 Id. (internal quotations and citations omitted).      29 Id. at 975–76.                                     38 547 F.2d 367 (7th Cir. 1976).




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                                             48598            Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations

                                             condition’’ hams in violation of 7 U.S.C.                into effect would create an unworkable                  completion of the rulemaking process; and
                                             192(a).39 The court concluded that ‘‘the                 legal patchwork. Based on the                           the harm that could befall members of the
                                             plaintiffs have failed to state a claim                  comments received and the above legal                   public as a result of delays in promulgating
                                                                                                                                                              the rule in question.50
                                             upon which relief can be granted under                   analysis, GIPSA is withdrawing the IFR.
                                             the Packers and Stockyards Act. For the                                                                             A situation is ‘‘impracticable’’ if ‘‘the
                                                                                                      B. The Interim Final Rule Was                           agency cannot ‘both follow section 553
                                             purpose of that statute is to halt unfair
                                                                                                      Insufficiently Supported by a ‘‘Good                    and execute its statutory duties.’ ’’ 51
                                             business practices which adversely
                                                                                                      Cause’’ Exception to the Administrative                 ‘‘Unnecessary’’ refers to situations
                                             affect competition, not shown
                                                                                                      Procedure Act’s Notice and Comment                      where the rule at issue is ‘‘technical or
                                             here . . . .’’ 40
                                                                                                      Procedure                                               minor’’ 52 or where it ‘‘is a routine
                                                One of the cases from the Eighth
                                             Circuit commonly cited by commenters                        GIPSA is also withdrawing the IFR                    determination, insignificant in nature
                                             as requiring a showing of harm to                        because we believe it did not satisfy the               and impact, and inconsequential to the
                                             competition for all violations of 7 U.S.C.               APA’s notice and comment                                industry and to the public.’’ 53 Finally,
                                             192(a) and (b), does not convincingly                    requirements at 5 U.S.C. 553(b) and (c).                ‘‘contrary to the public interest’’ arises
                                             support the commenters’ position. In                     GIPSA justified promulgating the IFR                    when there is ‘‘real harm to the public,
                                             Jackson v. Swift Eckrich, Inc.,41 the                    without notice and pre-promulgation                     not mere inconvenience to the
                                             plaintiffs claimed that 7 U.S.C. 192                     opportunity for comment because we                      Agency,’’ 54 and it ‘‘connotes a situation
                                             entitled them the opportunity to obtain                  reasoned that its solicitation of                       in which the interest of the public
                                             the same type of contract that defendant                 comments over a five month period on                    would be defeated by any requirement
                                             offered other independent growers.42                     the June 2010 NPRM satisfied those                      of advance notice,’’ such as a situation
                                             The court disagreed stating that ‘‘[w]e                  requirements. 81 FR at 92570. GIPSA                     when announcing a rule would enable
                                             are convinced that the purpose behind                    reached this conclusion because                         the harm the rule was designed to
                                             § 202 of the [P&S Act], 7 U.S.C. 192, was                proposed 9 CFR 201.3(c) in the June                     prevent.55
                                             not to so upset the traditional principles               2010 NPRM was largely the same as 9                        The sole justification for invoking
                                             of freedom of contract. The [P&S Act]                    CFR 201.3(a) in the IFR. Upon further                   ‘‘good cause’’ in the IFR was that its
                                             was designed to promote efficiency, not                  examination, we recognize that this                     June 2010 NPRM soliciting public
                                             frustrate it.’’ 43 But, the court also                   justification is not sufficient to meet the             comment satisfied the APA’s notice and
                                             appeared to acknowledge that other                       APA’s bar for establishing ‘‘good cause’’               comment requirements. Courts have
                                             alleged violations of the P&S Act did not                sufficient to dispense with normal                      acknowledged that an agency does not
                                                                                                      notice and comment procedures.                          always have to ‘‘start from scratch’’ and
                                             require a showing of harm to
                                                                                                         To promulgate a rule as an interim                   initiate new notice and comment
                                             competition. Specifically, the court
                                                                                                      final rule and forego the normal notice                 proceedings to re-promulgate a rule.56
                                             explained that:
                                                                                                      and comment procedure, an agency                        On the other hand, the ‘‘mere presence
                                               With regard to the claims of ‘other’ [P&S                                                                      of a prior notice and comment record’’
                                                                                                      must invoke a ‘‘good cause’’ exception
                                             Act] violations, the breach of contract claim,                                                                   does not automatically ‘‘render the
                                             and the fraud claim, the district court found            under the APA and explain its rationale
                                                                                                      within the rule itself.46 To establish                  solicitation of new comments
                                             that a jury question existed. We agree. The
                                             Jacksons presented evidence that Swift                   ‘‘good cause,’’ the agency must                         unnecessary.’’ 57 ‘‘Although the [APA]
                                             Eckrich had violated a number of PSA                     demonstrate that the normal procedure                   does not establish a ‘useful life’ for a
                                             regulations, that it did not use the                     would be ‘‘impracticable, unnecessary,                  notice and comment record, clearly the
                                             condemned carcass calculation formula                    or contrary to the public interest.’’ 47                life of such a record is not infinite.’’ 58
                                             provided in the floor contracts, and that it             ‘‘[T]he inquiry into whether good cause                 Accordingly, ‘‘[i]f the original record is
                                             recorded bird weights without actually                   has been properly invoked must                          still fresh, a new round of notice and
                                             performing any measurements.44                                                                                   comment might be unnecessary. Such a
                                                                                                      proceed on a case-by-case basis, with a
                                                On the other hand, other Eighth                       sensitivity to the totality of the factors              finding, however, must be made by the
                                             Circuit cases have required a showing of                 at play.’’ 48 When agencies invoke ‘‘good               agency and supported in the record; it
                                             a likelihood of competitive injury when                  cause,’’ ‘‘the good cause exception is to               is not self-evident.’’ 59
                                             a plaintiff alleges that a practice is                   be ‘narrowly construed and only                            We are unable to identify
                                             unfair because of its relationship to                    reluctantly countenanced.’ ’’ 49                        circumstances sufficient to dispense
                                             prices, bidding, or competition.45                          Within the good cause inquiry, courts                  50 Northern Mariana Islands v. United States, 686
                                                Nevertheless, because at least two                    have identified situations that are                     F.Supp.2d 7, 14–15 (D.D.C. 2009) (internal citations
                                             courts of appeals have held that the text                ‘‘impracticable, unnecessary, or contrary               omitted).
                                             of the P&S Act unambiguously                             to the public interest,’’ based on a                      51 Riverbend Farms, Inc. v. Madigan, 958 F.2d

                                             forecloses USDA’s longstanding                           consideration of multiple factors. Those                1479, 1484 n.2 (9th Cir. 1992) (quoting Levesque v.
                                                                                                                                                              Block, 723 F.2d 175, 184 (1st Cir. 1983)).
                                             interpretation, allowing the IFR to go                   factors include:                                          52 Id.

                                                                                                      the scale and complexity of the regulatory                53 Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C.
                                               39 Id. at 369.                                         program the agency was required to                      Cir. 2012) (quoting Util. Solid Waste Activities
                                               40 Id. at 369–70.
                                                                                                      implement; any deadlines for rulemaking                 Group v. EPA, 236 F.3d 749, 755, (D.C. Cir. 2001).
                                               41 53 F.3d 1452 (8th Cir. 1995).                                                                                 54 Action on Smoking and Health v. Civ.
                                                                                                      imposed by the enabling statute; the
                                               42 Id. at 1458.
                                                                                                      diligence with which the agency approached              Aeronautics Board, 713 F.2d 795, 801–02 (D.C. Cir.
                                               43 Id.                                                                                                         1983).
                                                                                                      the rulemaking process; obstacles outside the             55 Util. Solid Waste Activities Group, 236 F.3d at
                                               44 Id. at 1458–59 (internal citations omitted).
                                                                                                      agency’s control that impeded efficient                 755 (quoting United States Department of Justice,
                                               45 See Farrow v. USDA, 760 F.2d 211, 214 (8th

                                             Cir. 1985) (‘‘We agree with the JO that a practice                                                               Attorney General’s Manual on the Administrative
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                                             which is likely to reduce competition and prices
                                                                                                        46 5   U.S.C. 553(b)(B).                              Procedure Act 31 (1947)).
                                                                                                        47 Id.                                                  56 Mobile Oil Corp. v. EPA, 35 F.3d 579, 584 (D.C.
                                             paid to farmers for cattle can be found an unfair
                                             practice under the Act, and be a predicate for a           48 Woods Psychiatric Inst. v. United States, 20 Cl.   Cir. 1994).
                                                                                                                                                                57 Action on Smoking and Health v. Civ.
                                             cease and desist order. We conclude that this is so      Ct. 324, 332–33 (1990) (citing Alcaraz v. Block, 746
                                             even in the absence of evidence that the                 F.2d 593, 612 (9th Cir. 1984)).                         Aeronautics Board, 713 F.2d 795, 801 (D.C. Cir.
                                             participants made their agreement for the purpose          49 Tennessee Gas Pipeline Co. v. FERC, 969 F.2d       1983).
                                                                                                                                                                58 Id. at 800.
                                             of reducing prices to farmers or that it had that        1141, 1144 (D.C. Cir.1992) (quoting State of New
                                             result.’’).                                              Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980)).     59 Mobile Oil Corp., 35 F.3d at 584.




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                                                              Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations                                       48599

                                             with traditional notice and comment                      harm following the normal notice and                  B. Executive Orders 12866 and 13771,
                                             procedures. Although a large number of                   comment procedure.64 Although                         and Regulatory Flexibility Act
                                             comments were received over a five-                      appropriations acts prevented GIPSA                      This final rule has been determined to
                                             month period, USDA is unwilling to                       from taking any action for three years,               be significant for the purposes of
                                             assert—and the record does not support                   this congressionally mandated delay                   Executive Order 12866 and, therefore,
                                             the inference that—the June 2010 NPRM                    alone is insufficient to constitute good              has been reviewed by the Office of
                                             was still ‘‘fresh.’’ 60 Accordingly, the                 cause.                                                Management and Budget. This final rule
                                             IFR’s good cause explanation is unlikely                   For the reasons discussed above,                    is an Executive Order 13771
                                             to withstand judicial scrutiny. As one                                                                         deregulatory action. Assessment of the
                                                                                                      GIPSA concludes that its possible
                                             commenter said, the record from the                                                                            cost of allowing the interim final rule to
                                                                                                      justifications for issuing the rule as an
                                             June 2010 rulemaking was ‘‘stale.’’                                                                            take effect and the cost savings
                                                                                                      interim final rule fail to meet any of the
                                             Thus, according to the commenter,                                                                              attributed to not allowing the interim
                                                                                                      prongs of the ‘‘good cause’’ exception,
                                             GIPSA should have re-opened the                                                                                final rule to take effect may be found in
                                                                                                      individually or cumulatively. Therefore,
                                             comment period to refresh the                                                                                  the economic analysis below.
                                                                                                      the prior decision to forgo notice and
                                             rulemaking record or terminated the                                                                               The first section of the analysis
                                                                                                      comment was flawed and compels
                                             rulemaking record. GIPSA’s decision to                                                                         discusses the two regulatory alternatives
                                                                                                      GIPSA to withdraw the IFR.
                                             seek post-promulgation comment in the                                                                          considered and presents a summary
                                             IFR, noting the high stakeholder                         V. Required Impact Analyses                           cost-benefit analysis of each alternative.
                                             interest, the intervening six years since                                                                      GIPSA then discusses the impact on
                                             the NPRM, and an interest in open and                    A. Effective Date
                                                                                                                                                            small businesses.
                                             transparent government, suggests that                       The IFR addressing the scope of 7
                                             the agency recognized the need to                                                                              Cost-Benefit Analysis of § 201.3(a)
                                                                                                      U.S.C. 192(a) and (b) will become
                                             refresh the rulemaking record.                           effective on October 19, 2017, unless                 Regulatory Alternatives Considered
                                                Failing ‘‘to incorporate an adequate
                                                                                                      withdrawn or suspended. Pursuant to                      Executive Order 12866 requires an
                                             statement of good cause for dispensing
                                                                                                      the APA at 5 U.S.C. 553(d)(3), GIPSA                  assessment of costs and benefits of
                                             with prior notice and comment has not
                                                                                                      finds good cause for making this final                potentially effective and reasonably
                                             been held fatal if good cause indeed
                                                                                                      rule effective less than 30 days after                feasible alternatives to the planned
                                             existed,’’ 61 but we can offer no further
                                                                                                      publication in the Federal Register                   rulemaking and an explanation of why
                                             justifications as to why the normal
                                                                                                      because it would be contrary to the                   the planned regulatory action is
                                             notice and comment procedure was
                                                                                                      public interest to delay any further.                 preferable to the potential alternatives.
                                             ‘‘impracticable, unnecessary, or contrary
                                                                                                         Justifiable good cause includes                    In the IFR, GIPSA considered three
                                             to the public interest.’’ The
                                                                                                      situations where the interest of the                  alternatives. The first alternative
                                             ‘‘impracticable’’ prong was not
                                                                                                      public is defeated when following the                 considered was to maintain the status
                                             applicable because GIPSA could have
                                                                                                      normal procedure would create the                     quo and not finalize § 201.3(a). The
                                             executed its statutory duties by issuing
                                                                                                      harm the rule was designed to                         second alternative considered was to
                                             a new proposed rule and soliciting
                                                                                                      prevent.65 This situation is present here.            issue § 201.3(a) as an IFR. The third
                                             comments in compliance with the APA.
                                                                                                      A significant purpose in withdrawing                  alternative considered was to issue
                                             The ‘‘unnecessary’’ prong was also not
                                                                                                      the IFR is to avoid conflict with federal             § 201.3(a) as an IFR but exempt small
                                             applicable because GIPSA estimated the
                                                                                                      appellate courts. If the IFR goes into                businesses, as defined by the Small
                                             implementation costs of the rule for the
                                                                                                      effect before this final rule to withdraw             Business Administration, from having to
                                             livestock and poultry industries would
                                                                                                      it can go into effect, the conflict with the          comply with the rule. GIPSA chose the
                                             be millions of dollars. For this reason
                                                                                                      federal appellate courts will occur.                  second alternative, to issue § 201.3(a) as
                                             alone, the IFR was not ‘‘technical or
                                                                                                      Accordingly, to eliminate this potential              an IFR. The IFR announced GIPSA
                                             minor.’’ Finally, there was no evidence
                                                                                                      conflict, it is necessary to have this rule           would add a paragraph to section 201.3
                                             that prior notice and opportunity for
                                                                                                      become effective immediately.                         of the regulations addressing the scope
                                             comment would have been ‘‘contrary to
                                                                                                                                                            of 7 U.S.C. 192(a) and (b). After multiple
                                             the public interest,’’ as the IFR                           Additionally, because GIPSA erred in               delays of the effective date, the IFR was
                                             memorialized GIPSA’s well known and                      promulgating the IFR without following                scheduled to become effective on
                                             longstanding interpretation.                             the APA’s normal notice and comment
                                                GIPSA thus recognizes that no good                                                                          October 19, 2017.
                                                                                                      procedure, it is in the public’s interest                In preparing this final rule, GIPSA
                                             cause existed. Neither Congress nor a                    for GIPSA to respect the rule of law and              initially considered four alternatives, as
                                             court mandated that GIPSA issue                          withdraw the IFR. Immediately                         described in Section III above. After
                                             § 201.3(a), nor were there any deadlines                 withdrawing the IFR prevents confusion                soliciting comments on the four
                                             for its issuance.62 Because § 201.3(a)                   in the livestock and poultry industries               alternatives, GIPSA is only further
                                             only reiterated USDA’s longstanding                      that may occur if the interim rule was                analyzing two of the alternatives,
                                             interpretation of the P&S Act as                         only briefly effective. Thus, this final              allowing the IFR to become effective
                                             confirmed in the 2010 NPRM, the                          rule will be effective upon publication               (alternative 1) and withdrawing the IFR
                                             impacted livestock and poultry                           in the Federal Register.                              (alternative 4). GIPSA is only further
                                             industries should have been aware of
                                                                                                                                                            analyzing these two alternatives because
                                             the interpretation, thereby negating the                   64 See U.S. Steel Corp. v. EPA, 595 F.2d 207, 214
                                                                                                                                                            all of the commenters who selected a
                                             necessity to issue the rule                              n.15 (5th Cir. 1979) (listing as examples of harm
                                                                                                                                                            preferred alternative selected
                                             immediately.63 Also, there was no                        regulations ‘‘involving government price controls,
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                                                                                                      because of the market distortions caused by the       alternatives 1 and 4, save one
                                             evidence that the public would suffer
                                                                                                      announcement of future controls’’ and regulations     commenter. That commenter, as
                                                                                                      involving ‘‘gas stations, where temporary shortages   discussed in Section III, appears to have
                                               60 See   id.                                           and discriminatory practices were found to have
                                               61 Kollett v. Harris, 619 F.2d 134, 144–45 (1st Cir.   deprived some users of any supply and led to
                                                                                                                                                            had a real preference for alternative 4.
                                             1980).                                                   violence’’).                                             In analyzing these two alternatives,
                                               62 Id. at 15.                                            65 See Util. Solid Waste Activities Group v. EPA,   GIPSA used the same data and analysis
                                               63 Id.                                                 236 F.3d 749, 755 (D.C. Cir. 2001).                   as presented in the IFR. GIPSA used the


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                                             48600            Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations

                                             same data and analysis because only a                    cost spectrum, GIPSA considered the                    provide a qualitative benefit. The
                                             relatively short period of time has                      scenario where the only costs were                     primary qualitative benefit would be
                                             elapsed since the economic analysis was                  increased litigation costs and where                   broader protection and fair treatment for
                                             conducted for the IFR. Therefore, the                    there were no adjustments by the                       livestock producers, swine production
                                             underlying facts and reasoning used in                   livestock and poultry industries to                    contract growers, and poultry growers,
                                             the estimates prepared for the IFR have                  reduce their use of Alternative                        which could lead to more equitable
                                             not changed to any material extent.                      Marketing Agreements (AMA) or                          contracts. GIPSA contended that the
                                             Also, because of the relatively short                    incentive pay systems—such as poultry                  enactment of § 201.3(a) would allow for
                                             period of time since the publication of                  grower ranking systems—and there were                  the increased ability to enforce the P&S
                                             the IFR, the livestock and poultry                       no changes to existing marketing or                    Act for violations of 7 U.S.C. 192(a) and
                                             industries have not had time to make                     production contracts. For the upper                    (b), which do not result in harm or
                                             significant changes in their structures,                 boundary of the cost spectrum, GIPSA                   likely harm to competition. GIPSA
                                             practices, or methodologies—if they                      considered the scenario in which the                   believed that increased enforcement
                                             have made any changes. Moreover,                         livestock and poultry industries                       actions would help in reducing the
                                             GIPSA anticipated that many firms                        adjusted their use of AMAs and                         ability of packers, swine contractors,
                                             would take a ‘‘wait and see’’ approach                   incentive pay systems and made                         and live poultry dealers to monopolize
                                             and would not make significant changes                   systematic changes in its marketing and                or exercise market power. This, in turn,
                                             to their operations or procurement                       production contracts to reduce the                     would help provide livestock producers,
                                             practices until they were sure that the                  threat of litigation.66                                swine production contract growers, and
                                             IFR would become effective.                                 GIPSA estimated the annualized costs                poultry growers with some degree of
                                                Given the multiple delays of the                      of § 201.3(a) to range from $6.87 million              negotiating power parity. GIPSA also
                                             effective date of the IFR and the                        to $96.01 million at the three percent                 believed that enforcement could serve
                                             proposed rule seeking comments on the                    discount rate and from $7.12 million to                as a deterrent to future violations of 7
                                             disposition of the IFR, GIPSA believes                   $98.60 million at the seven percent                    U.S.C. 192(a) and (b).
                                             that few, if any, livestock and poultry                  discount rate. The range of potential
                                             producers and stakeholders changed                       costs is broad. GIPSA relied on its                    Alternative Two: Withdraw the Interim
                                             their operations or procurement                          expertise to arrive at a point estimate                Final Rule
                                             practices in reliance on the assumption                  range of expected annualized costs.                       Withdrawing the IFR negates the
                                             that the IFR would become effective. In                  GIPSA expected that the cattle, hog, and               $51.44 million with a range of $6.87
                                             fact, no commenters on this proposed                     poultry industries would primarily take                million to $96.01 million at a three
                                             rule said they changed their operations                  a ‘‘wait and see’’ approach to how                     percent discount rate and $52.86
                                             or procurement practices, nor has                        courts would interpret § 201.3(a), and                 million with a range of $7.12 million to
                                             GIPSA otherwise been made aware of                       the industries would only slightly adjust              $98.60 million at a seven percent
                                             anyone or any business making changes                    their use of AMA’s and performance-                    discount rate in projected annualized
                                             to their operations or procurement                       based payment systems in the                           costs described above that would be
                                             practices in reliance on the IFR’s                       meantime. GIPSA estimated that the                     incurred should the IFR become
                                             becoming effective. Therefore, the                       annualized cost of § 201.3(a) would be                 effective. It also means that the
                                             conditions in the livestock and poultry                  $51.44 million at a three percent                      qualitative benefit of § 201.3(a)—broader
                                             industries likely remain as they were                    discount rate and $52.86 million at a                  protection and fair treatment for
                                             when the IFR was published.                              seven percent discount rate based on an                livestock producers, swine production
                                                                                                      anticipated ‘‘wait and see’’ approach                  contract growers, and poultry growers,
                                             Alternative One: Allow the Interim                                                                              which may lead to more equitable
                                                                                                      and limited industry adjustments.
                                             Final Rule To Become Effective                              Although GIPSA was unable to                        contracts are not expected to occur as a
                                                The costs and benefits described for                  quantify the benefits of § 201.3(a),                   result of this rule. Instead, GIPSA
                                             alternative number two in the IFR, to                    GIPSA determined that this rule did                    expects that packers and live poultry
                                             finalize the IFR, equate to current                                                                             dealers would continue with their
                                             alternative 1, allowing the IFR to                         66 GIPSA specifically looked at the following        current practices and that current rates
                                             become effective. In the absence of any                  range of expected costs if the interim final rule      of enforcement of the 7 U.S.C. 192(a)
                                             action by GIPSA, the IFR will become                     became effective:
                                                                                                        A. Lower Boundary of Cost Spectrum-Litigation
                                                                                                                                                             and (b) would remain unchanged.
                                             effective on October 19, 2017, and the                   Costs of Preferred Alternative (81 FR 92578–92580).
                                             costs and benefits associated with the                                                                          Cost-Benefit Comparison of Regulatory
                                                                                                        B. Lower Boundary-Ten-Year Total Costs of the
                                             rule will start to be incurred once the                  Preferred Alternative (81 FR 92580–92581).
                                                                                                                                                             Alternatives
                                             IFR becomes effective. Although none of                    C. Lower Boundary-Net Present Value of Ten-             Alternative 1, allowing the IFR to
                                             these costs or benefits associated with                  Year Total Costs of the Preferred Alternative (81 FR   become effective, results in annualized
                                                                                                      92581).
                                             the IFR result under current practice,                                                                          costs estimated at $51.44 million with a
                                                                                                        D. Lower Boundary-Annualized NPV of Ten-Year
                                             they will result from allowing the IFR to                Total Costs of the Preferred Alternative (81 FR        range of $6.87 million to $96.01 million
                                             become effective. As such, GIPSA                         92581).                                                at a three percent discount rate and
                                             analyzed the post-regulatory world in                      E. Upper Boundary of Cost Spectrum-Preferred         $52.86 million with a range of $7.12
                                             preparing the regulatory analysis                        Alternative (81 FR 92581–92585).                       million to $98.60 million at a seven
                                                                                                        F. Upper Boundary-NPV of Ten-Year Total Costs        percent discount rate. As stated above,
                                             associated with the IFR as the best                      of the Preferred Alternative (81 FR 92585).
                                             estimate of the legal status quo.                          G. Upper Boundary-Annualized Costs of the
                                                                                                                                                             GIPSA was unable to quantify the
                                                As described in the IFR, given the                    Preferred Alternative (81 FR 92585).                   benefits of § 201.3(a), but it did identify
                                             applicability of the regulation to the                                                                          qualitative benefits of allowing the IFR
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                                                                                                        H. Sensitivity Analysis of the Upper Boundary
                                             livestock and poultry industries in their                (81 FR 92585).                                         to become effective. The primary
                                             entirety, it was difficult to predict how                  I. Range of Annualized Costs of the Preferred        qualitative benefit of this alternative
                                                                                                      Alternative (81 FR 92585–92586).
                                             those industries would respond.                                                                                 was broader protection and fair
                                                                                                        J. Point Estimate of Annualized Costs of the
                                             Therefore, in the IFR, GIPSA assigned a                  Preferred Alternative (81 FR 92586).                   treatment for livestock producers, swine
                                             range to the expected costs of the                         K. Sensitivity Analysis of Point Estimates of        production contract growers, and
                                             regulation. At the lower boundary of the                 Annualized Costs (81 FR 92586–92587).                  poultry growers, which may lead to


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                                                              Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations                                       48601

                                             more equitable contracts. Benefits to the                businesses if they have fewer than 1,000              2015. For that same year, GIPSA
                                             industries and the markets were                          employees.                                            records, included 293 firms reporting
                                             projected to come from improvements to                      The Regulatory Flexibility Analysis in             the slaughter of cattle. Of these, 287
                                             the parity of negotiating power and from                 the IFR published on December 20,                     would be classified as small businesses.
                                             increased enforcement serving as a                       2016, analyzed the impact of enacting                    As discussed earlier, because of the
                                             deterrent to future violations. Upon                     the IFR on small businesses (81 FR                    relatively short period of time since the
                                             further consideration of comments, the                   92591–92594). As part of the analysis,                publication of the IFR, the livestock and
                                             amount of increased enforcement may                      GIPSA identified the approximate                      poultry industries have not changed
                                             have been overestimated, because                         number of entities subject to the IFR                 their structures, practices, or
                                             GIPSA was only enshrining in the                         that were small businesses and analyzed               methodologies. Also, GIPSA correctly
                                             rulemaking USDA’s longstanding view                      the costs for those small businesses to               predicted that many firms would take a
                                             that proof of likelihood of harm to                      implement § 201.3(a), both in the first               ‘‘wait and see’’ approach and would not
                                             competition is not required in all                       full year of implementation (at that time             want to make significant changes to
                                             instances. Additionally, GIPSA’s                         2017), and annualized over a ten-year                 their operations or procurement
                                             estimates were based on the assumption                   period. Because of the relatively short               practices until they were sure that the
                                             that all courts would enforce the IFR,                   period of time since the publication of               IFR would become effective.
                                             ignoring the case law to the contrary.                   the IFR, the numbers of subject entities              Consequently, no small businesses
                                             Notwithstanding an expected lack of                      that are small businesses have not                    should incur any costs from the IFR’s
                                             deference by the Federal Circuits to the                 appreciably changed; therefore, the                   withdrawal.
                                             regulation, an increase in litigation is                 same number of entities that were small                  Based on this analysis, GIPSA
                                             unavoidable in the livestock and poultry                 businesses that would have been                       certifies that withdrawal of the IFR is
                                             industries to not only interpret this                    impacted by implementing the IFR are                  not expected to have a significant
                                             regulation, but also to uphold it. This                  the same entities that would be                       economic impact on a substantial
                                             serves neither the interests of the                      impacted by withdrawing the IFR.                      number of small business entities as
                                             livestock and poultry industries nor                        The Census of Agriculture (Census)                 defined in the Regulatory Flexibility Act
                                             GIPSA.                                                   indicates there were 558 farms that sold              (5 U.S.C. 601, et seq.).
                                                                                                      their own hogs and pigs in 2012 and
                                                Alternative 2, withdrawing the IFR,                                                                         C. Executive Order 12988
                                                                                                      that identified themselves as contractors
                                             would result in the benefit of                           or integrators. GIPSA estimated that                     GIPSA reviewed this final rule under
                                             eliminating the projected annualized                     about 65 percent of swine contractors                 Executive Order 12988, Civil Justice
                                             costs of $51.44 million with a range of                  had sales of less than $750,000 in 2012               Reform. This action is not intended to
                                             $6.87 million to $96.01 million at a                     and would have been classified as small               have retroactive effect nor will it pre-
                                             three percent discount rate and $52.86                   businesses. These small businesses                    empt state or local laws, regulations, or
                                             million with a range of $7.12 million to                 accounted for only 2.8 percent of the                 policies, unless they present an
                                             $98.60 million at a seven percent                        hogs produced under production                        irreconcilable conflict with this rule.
                                             discount rate that would be incurred if                  contracts. Additionally, there were                   There are no administrative procedures
                                             the IFR became effective. These figures                  8,031 swine producers in 2012 with                    that must be exhausted before any
                                             represent the cost savings from                          swine contracts and about half of these               judicial challenge to this final rule.
                                             withdrawing the IFR, however, these                      producers would have been classified as               Nothing in this final rule is intended to
                                             savings come at the arguable cost of the                 small businesses.                                     interfere with a person’s right to enforce
                                             qualitative benefit GIPSA identified in                     Based on U.S. Census data on county                liability against any person subject to
                                             the IFR. The projected broader                           business patterns, in 2013, there were                the P&S Act under authority granted in
                                             protection and fair treatment for                        approximately 59 live poultry dealers                 section 308 of the P&S Act.
                                             livestock producers, swine production                    employing fewer than 1,250 people
                                             contract growers, and poultry growers,                   each, which would have been classified                D. Executive Order 13175
                                             which might possibly lead to more                        as small businesses. GIPSA records for                  GIPSA reviewed this final rule in
                                             equitable contracts, will be lost.                       2014 indicated there were 21,925                      accordance with the requirements of
                                                Having considered both alternatives,                  poultry production contracts in effect, of            Executive Order 13175, ‘‘Consultation
                                             GIPSA believes that alternative 2,                       which 13,370, or 61 percent, were held                and Coordination with Indian Tribal
                                             withdrawing the IFR, is the best option.                 by the largest six live poultry dealers,              Governments.’’ Executive Order 13175
                                                                                                      and 90 percent (19,673) were held by                  requires Federal agencies to consult and
                                             Regulatory Flexibility Act Analysis of
                                                                                                      the largest 25 firms. These 25 firms are              coordinate with tribes on a government-
                                             Withdrawing the Interim Final Rule
                                                                                                      all in the large business SBA category,               to-government basis on policies that
                                               The Small Business Administration                      whereas the 21,925 poultry growers                    have tribal implications, including
                                             (SBA) defines small businesses by their                  holding the other end of the contracts                regulations, legislative comments or
                                             North American Industry Classification                   are almost all small businesses by SBA’s              proposed legislation, and other policy
                                             System Codes (NAICS).67 SBA considers                    definitions. GIPSA determined that                    statements or actions that have
                                             broiler and turkey producers and swine                   poultry dealers classified as large                   substantial direct effects on one or more
                                             contractors, NAICS codes 112320,                         businesses are responsible for about                  Indian tribes, on the relationship
                                             112330, and 112210 respectively, to be                   89.7 percent of the costs on poultry                  between the Federal Government and
                                             small businesses if sales are less than                  contracts and therefore, by extension,                Indian tribes, or on the distribution of
                                             $750,000 per year. Live poultry dealers,                 small businesses would be responsible                 power and responsibilities between the
                                                                                                      for 10.3 percent of the costs. GIPSA
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                                             NAICS 311615, are considered small                                                                             Federal Government and Indian tribes.
                                             businesses if they have fewer than 1,250                 records, as of June 2016, included 227                  Although GIPSA has assessed the
                                             employees. Beef and pork packers,                        firms reporting the slaughter of hogs. Of             impact of this final rule on Indian tribes
                                             NAICS 311611, are defined as small                       these, 219 would be classified as small               and determined that this final rule does
                                                                                                      businesses. GIPSA estimated that small                not, to its knowledge, have tribal
                                               67 See: http://www.sba.gov/idc/groups/public/          businesses accounted for approximately                implications that require tribal
                                             documents/sba_homepage/serv_sstd_tablepdf.pdf.           17.8 percent of the hogs slaughtered in               consultation under Executive Order


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                                             48602            Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations

                                             13175, GIPSA offered opportunities to                    meaningful consultation is provided                   information technologies to provide
                                             meet with representatives from Tribal                    where changes, additions, and                         increased opportunities for citizen
                                             Governments during the comment                           modifications herein are not expressly                access to Government information and
                                             period for the June 2010 NPRM (June 22                   mandated by Congress.                                 services, and for other purposes.
                                             to November 22, 2010) with specific
                                                                                                      E. Paperwork Reduction Act                            List of Subjects in 9 CFR Part 201
                                             opportunities in Rapid City, South
                                             Dakota, on October 28, 2010, and                            This final rule does not contain new                 Contracts, Livestock, Poultry, Trade
                                             Oklahoma City, Oklahoma, on                              or amended information collection                     practices.
                                             November 3, 2010. GIPSA invited all                      requirements subject to the Paperwork                 ■ Accordingly, the interim final rule
                                             tribal governments to participate in                     Reduction Act of 1995 (44 U.S.C. 3501                 amending 9 CFR Part 201 that was
                                             these venues for consultation. GIPSA                     et seq.). It does not involve collection of           published at 81 FR 92566–92594 on
                                             has received no specific indication that                 new or additional information by the                  December 20, 2016, is withdrawn.
                                             the final rule will have tribal                          federal government.
                                                                                                                                                            Randall D. Jones,
                                             implications and has received no further                 F. E-Government Act Compliance
                                             requests for consultation as of the date                                                                       Acting Administrator, Grain Inspection,
                                                                                                                                                            Packers and Stockyards Administration.
                                             of this publication. If a Tribe requests                   GIPSA is committed to compliance
                                             consultation, GIPSA will work with the                   with the E-Government Act, to promote                 [FR Doc. 2017–22593 Filed 10–17–17; 8:45 am]
                                             Office of Tribal Relations to ensure                     the use of the internet and other                     BILLING CODE 3410–KD–P
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Document Created: 2017-10-18 01:38:03
Document Modified: 2017-10-18 01:38:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule; withdrawal.
DatesThe interim final rule published on December 20, 2016 (81 FR 92566), is withdrawn as of October 18, 2017.
ContactS. Brett Offutt, Director, Litigation and Economic Analysis Division, Packers and Stockyards Program, GIPSA, 1400 Independence Ave. SW., Washington, DC 20250-3601, (202) 720-7051, [email protected]
FR Citation82 FR 48594 
RIN Number0580-AB28
CFR AssociatedContracts; Livestock; Poultry and Trade Practices

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