“In addition to exceeding the direction it received from Congress and containing numerous provisions that are legally infirm, GIPSA’s proposed rule, if finalized, will cost the meat and poultry industry dearly in jobs, revenue and productivity,” said AMI Senior Vice President of Regulatory Affairs and General Counsel Mark Dopp.

“Unfortunately, GIPSA is hurtling down a path, based on anecdote and innuendo, but with no regard to the truly significant adverse economic and social consequences this rule would have on livestock producers, consumers, and the meat and poultry industry,” Mr Dopp said.

In its comments, AMI outlined five key areas in which the proposed rule is seriously flawed:

1. The proposed rule conflicts with long-standing judicial precedent. The Institute pointed out that as recently as 1997, the agency understood and accepted the position that in order to prevail in a Packers and Stockyards Act case, a plaintiff had to demonstrate injury or likelihood of injury to competition. This fact calls into question the agency’s assertion in the proposed rule that its new proposed competitive injury language reflects a “longstanding” GIPSA interpretation.

The comments also detail the substantial judicial precedent established by numerous federal courts that conflict with GIPSA’s proposal, including several very recent court cases that affirm the need to demonstrate harm to competition in such cases.

2. Many provisions would cause severe economic harm to producers, consumers, packers, and live poultry dealers. The 2002 Farm Bill authorized GIPSA to conduct a study regarding the effects of what the agency defined as “alternative marketing arrangements” (AMAs) on the livestock and meat industries. The study was completed in 2007 by RTI International (RTI)

“Based on the RTI study’s conclusions, the proposal, if finalized, would have a very adverse effect on the meat and livestock industry, with the greatest negative impact on livestock producers and consumers,” Dopp notes. “Unfortunately, if the proposal as written is finalized, the significant losses identified by RTI will not be hypothetical – they will be real,” says Mr Dopp. Because the proposal lowers the burden involved in winning a P&S case, it makes the use of AMAs a risky practice – perhaps unacceptably so – for many packers.

3. Many elements of the proposal are unconstitutionally vague and patently unworkable. According to Mr Dopp, the proposed rule is littered with vague and unworkable terms and concepts. “One definition would find a ‘likelihood of competitive injury’ to include a situation in which a packer impairs ‘a producer's or grower's ability to receive the reasonable expected full economic value from a transaction in the market channel or marketplace’ but nowhere in the proposal is there any guidance about what constitutes the “reasonable expected full economic value” or how that value should be measured. Similarly, the proposed rule provides no guidance or explanation as to actions or decisions by a packer, swine contractor, or live poultry dealer might “impair” a producer’s or grower’s ability to compete with other growers or producers.
   
   
4. The proposal would adversely affect the meat and poultry industry’s ability to compete internationally. The proposed rule would largely eliminate the marketing agreements that are used to maintain customized meat production programs including European Union beef business (certified hormone free; 45,000 MT quota for each of the next three years), natural beef, many packers’ premium programs, and meat from age-verified livestock and specialized production systems such as “Certified Angus Beef.”
   
   
5. The agency failed to meet the requirements of Executive Order (EO) 12866. Executive Order 12866 requires a more comprehensive assessment than the simplistic cost-benefit analysis conducted as part of the proposed rule. AMI points out that the EO defines a “significant regulatory action” as any regulatory action that is likely to result in a regulation that may have an annual effect on the economy of $100 million or more.

“Any reasonable analysis of the industry and the proposed rule would have led to the conclusion that the annual effect on the economy would exceed $100 million,” Dopp wrote. “A recent analysis done by John Dunham and Associates examining the impact of the proposed rule and the fact that it will significantly alter and lessen the use of marketing agreements by packers yielded a conclusion that implementation of the proposed rule as written will cause the loss of approximately 104,000 jobs and adversely affect domestic GDP by $14 billion,” Mr Dopp said. “Here, the agency has failed to properly conduct a thorough economic impact analysis as required. That failure compels the agency to perform that analysis and then re-propose the rule,” the comments point out.