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Nov 30 -- Comment period extended to January 17, 2023. https://www.federalregister.gov/d/2022-26081

1) Press release Sept 26 -- Biden-Harris Administration Announces Major Actions to Spur Competition, Protect Producers and Reduce Costs

Today, at a meeting of the White House Competition Council, President Biden will announce two new efforts by the U.S. Department of Agriculture (USDA) to support fair and competitive meat and poultry markets, as part of the Department’s role in the President’s Competition Council. These efforts include (1) publishing the proposed Inclusive Competition and Market Integrity Rules Under the Packers and Stockyards Act to protect farmers and ranchers from abuse, and (2) a new $15 million Agricultural Competition Challenge to ramp up collaboration with the State Attorneys General (AG) on enforcement of the competition laws, such as the laws against price-fixing.

“Highly concentrated local markets in livestock and poultry have increasingly left farmers, ranchers, growers and producers vulnerable to a range of practices that unjustly exclude them from economic opportunities and undermine a transparent, competitive, and open market—which harms producers’ ability to deliver the quality, affordable food working families depend upon,” said Agriculture Secretary Tom Vilsack, who is a member of the White House Competition Council. “USDA is focused on building new, fairer, and more resilient markets, protecting producers, and reducing food costs, and we are proving again today that we will use all tools at our disposal to do so.”

Proposed Rule on Inclusive Competition and Market Integrity

USDA is proposing these modernized regulations under the Packers and Stockyards (P&S) Act’s provisions prohibiting undue prejudice, unjust discrimination, and deception to provide for clearer, more effective standards to govern the modern marketplace. The Inclusive Competition and Market Integrity proposed rule would revise regulations under the P&S Act by prohibiting certain prejudices and disadvantages against covered producers in the livestock, meat, and poultry markets. The regulations would prohibit retaliatory practices that interfere with lawful communications, assertion of rights, and participation in associations, among other protected activities—such as retaliating against a farmer or rancher for blowing the whistle on price-fixing. The regulations would also identify unlawfully deceptive practices that violate the P&S Act with respect to contract formation, contract performance, contract termination and contract refusal.

The purpose of the rule is to promote inclusive competition and market integrity in the livestock, meat, and poultry markets.

-- First, the proposed rule prohibits certain prejudices and disadvantages against covered producers. Specifically, the proposed rule seeks to protect “market vulnerable individuals” who are those at heightened risk of adverse, exclusionary treatment in the marketplace, which may include on the basis of their race, gender, sexual orientation, and religious affiliation.
--  Second, the proposed rule prohibits retaliatory practices that interfere with lawful communications, assertion of rights, and associational participation, among other protected activities.
-- Third, the proposed rule identifies unlawfully deceptive practices that violate the P&S Act with respect to contract formation, contract performance, contract termination and contract refusal.
-- Finally, the rule proposes recordkeeping requirements to support evaluation of regulated entity compliance, including the ability to inspect relevant records, such as policies and procedures, staff training and producer information materials, data and testing, board of directors’ oversight materials, and other relevant materials.

The second of three priority regulatory Packers and Stockyards Act initiatives USDA announced it would pursue, this rule, will soon be published in the Federal Register and made available for public comment. A preview of the rule is available on the Agricultural Marketing Service website. Once published, stakeholders and other interested parties will have 60 days from the date of publication to submit comments via the Regulations.gov web portal. All comments submitted will be considered as USDA develops a final rule.

Agricultural Competition Challenge to the State Attorneys General

Building on the Biden-Harris Executive Order’s “Whole-of-Government” approach, USDA is also taking action to ramp up enforcement of the competition laws by challenging the state attorneys general (AG) to partner with USDA on competition issues in the food and agriculture space, using up to $15 million in funds from the Consolidated Appropriations Act (CAA).

Through a combination of renewable cooperative agreements and memorandums of understanding, these new partnerships will assist state AGs in tackling anticompetitive practices in the agricultural sector and related industries that are contributing to heightened inflationary pressures, lack of choices for consumers and producers, and conflicts of interest and anticompetitive barriers across the food and agriculture supply chains.

Specifically, this initiative will improve state AG capacity to conduct on-the-ground investigations of competition issues, enhance coordination between Federal and state agriculture and competition enforcement authorities, create new and more independent research programs, and ultimately result in more rigorous enforcement of the competition laws.

USDA is working directly with state AG offices to solicit applications and requests for funding under this initiative and looks forward to these partnerships as we work together to secure America’s food systems.

Earlier this year USDA and DOJ announced their commitment to work more closely together to effectively enforce federal competition laws that protect farmers, ranchers, and other agricultural producers and growers from unfair and anticompetitive practices, including by launching the www.FarmerFairness.gov complaint portal for reporting suspected violations of federal competition law. Today’s challenge seeks to expand that collaborative effort to state AGs, who often have additional state authorities they can leverage to help achieve that goal.

https://www.usda.gov/media/press-releases/2022/09/26/biden-harris-administration-announces-major-actions-spur

2) FRN Oct 3 -- The U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) is soliciting comments on proposed revisions to the regulations under the Packers and Stockyards Act, 1921. The proposal would prohibit certain prejudices against market-vulnerable individuals that tend to exclude or disadvantage covered producers in those markets. The proposal would identify retaliatory practices that interfere with lawful communications, assertion of rights, and associational participation, among other protected activities, as unjust discrimination prohibited by the law. The proposal would also identify unlawfully deceptive practices that violate the Packers and Stockyards Act with respect to contract formation, contract performance, contract termination, and contract refusal. The purpose of the rule is to promote inclusive competition and market integrity in the livestock, meats, poultry, and live poultry markets. Comments must be received by December 2, 2022.

The rise of vertically integrated contract agriculture and highly concentrated local markets in livestock and poultry over the last four decades have increasingly left many producers and growers (hereinafter producers, unless otherwise noted) vulnerable to a range of practices that unjustly exclude them from and undermine their economic opportunities in the marketplace. The regulatory toolkit embodied in the Packers & Stockyards Act, as amended (P&S Act or Act) (7 U.S.C. 181 et seq.), has not been deployed to keep pace with these issues. AMS is proposing this regulation to enhance those basic protections that modern livestock and poultry producers need to promote inclusive competition and market integrity. We invite comment on a range of questions in this proposal.

Specifically, AMS is proposing to:

-- Prohibit, as undue prejudices, disadvantages, and adverse actions against “market vulnerable individuals” who are at heightened risk in relevant markets;
-- Prohibit, as unjust discrimination, retaliatory and adverse actions that interfere with lawful communications, assertion of rights, associational participation, and other protected activities;
-- Prohibit, as deceptive practices, regulated entities employing pretexts, false or misleading statements, or omissions of material facts, in contract formation, contract performance, contract termination, and contract refusal; and
-- Require recordkeeping to support USDA monitoring, evaluation, and enforcement of compliance with aspects of this rule.

AMS is proposing these modernized regulations under the Act's provisions prohibiting undue prejudice, unjust discrimination, and deception to provide for clearer, more effective standards to govern the modern marketplace and to better protect, through compliance and enforcement, individually harmed producers and growers. Enacted in 1921 “to comprehensively regulate packers, stockyards, marketing agents and dealers,” the P&S Act, among other things, prohibits actions that hinder integrity and competition in the livestock and poultry markets. Section 202(a) of the Act states that it is unlawful for any packer, swine contractor, or live poultry dealer to engage in or use any unfair, unjustly discriminatory, or deceptive practice or device.

Section 202(b) of the Act states that it is unlawful for any packer, swine contractor, or live poultry dealer to make or give any undue or unreasonable preference or advantage to any particular person or locality, or subject any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect. The Secretary of Agriculture (Secretary) has delegated the responsibility for administering the P&S Act to AMS. Within AMS, the Packers, and Stockyards Division (PSD) of the Fair-Trade Practices Program has responsibility for the day-to-day administration of the P&S Act. The current regulations implementing the P&S Act are found in title 9, part 201 of the Code of Federal Regulations (CFR). Section 407 of the P&S Act (7 U.S.C. 228) provides that the Secretary “may make such rules, regulations, and orders as may be necessary to carry out the provisions of this Act.” This proposed rule, if finalized, would amend 9 CFR part 201.

https://www.federalregister.gov/d/2022-21114 [46 pages]

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