P and S update comment period extended
Comments for USDA’s proposed rules for the Packers and Stockyards Act were originally expected to be due Dec. 2, but USDA added 45 days for comment through Jan. 17, 2023.
According to USDA’s own summary, 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.
R-CALF USA’s CEO Bill Bullard said that his group hasn’t submitted comments yet, and it appreciates the extra time to do so due to the complexity of the rule.
The proposed Packers and Stockyards Act rule spans 180 pages, poses 44 specific questions, and covers over 14 years of regulatory history.
The proposed rule, said Bullard, would make several changes including prohibiting retaliation and deception. The deception rule would primarily deal with contracts, he said, and explained that a packer could engage in deception by not discussing all the potential downsides of a contract.
The retaliation and deception sections appear to be straightforward and “universally applicable,” said Bullard.
The rule does something different, which could potentially inadvertently exclude some market participants, he said. In particular the section against undue prejudices and disadvantages, has grabbed his group’s attention.
“The rule creates a class of vulnerable market individuals, which includes minority livestock producers for the most part. And while we don’t object to that distinction, our concern is that non market-vulnerable individuals (non minorities) may not be able to obtain protection under the law. So we are considering that very carefully and want to ensure that when the Packers and Stockyards Act is enforced, it is enforced equally among all producers.
“While we understand USDA’s focus on undue prejudices, we think ‘undue disadvantages’ needs to be left out, to ensure that no livestock producer subject to unlawful conduct is unable to protect their financial interest,” he said.
Bullard urges producers in their comments to thank USDA for promulgating rules to implement the over 100-year-old Packers and Stockyards Act, to urge that the rules ensure that packers do not engage in anticompetitive conduct, and that in the event that they do, that all producers should be able to have access to protections of P and S. “So we are seeking universal application and fairness for all,” he said.
The proposed rules govern the relationship between a cattle seller and a packer buyer – so they affect those cattle owners selling directly to a packer.
NCBA said in a news release that it appreciates the comment period extension.
The National Cattlemen’s Beef Association (NCBA) welcomed the extension while urging USDA to proceed in a cautious, deliberative manner.
“While we appreciate the additional time to submit thorough comments, overall USDA should tap the brakes on this rulemaking effort,” said NCBA Senior Director of Government Affairs Tanner Beymer. “This is a significant undertaking rooted in decades of legislative, regulatory, and judicial history. Stakeholders must be afforded the opportunity to holistically evaluate the effects of both this rule and those which the Department has suggested are forthcoming.”
NCBA, along with other national livestock partners, requested an extension of the comment period last month in a letter to USDA. In addition, this coalition secured 100 bipartisan signatures on a congressional letter, led by Reps. Jim Costa (D-CA) and Steve Womack (R-AR), to USDA echoing this request.
The initial 60-day comment period was too short for stakeholders to provide meaningful feedback, said NCBA’s Beymer.