[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Proposed Rules]
[Pages 71568-71570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29551]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 59
[Doc. No. AMS-LS-10-0080]
Establishment of Negotiated Rulemaking Committee for Changes to
Livestock Mandatory Reporting
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Establishment of Negotiated Rulemaking Committee.
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SUMMARY: The U.S. Department of Agriculture, Agricultural Marketing
Service (AMS) is announcing its intent to establish a Wholesale Pork
Reporting Negotiated Rulemaking Committee (Committee). The Committee
will attempt to reach consensus on proposed language that AMS will
publish as a proposed rule in the Federal Register. The Committee will
include representatives of parties who would be affected by a final
rule. AMS solicits comments on this initiative and requests interested
parties to nominate representatives for membership on the Committee.
DATES: Written comments and requests for membership must be received on
or before December 27, 2010.
ADDRESSES: Comments may be submitted electronically at http://www.regulations.gov. Comments may also be sent to Michael Lynch, Chief;
USDA, AMS, LS, LGMN Branch; 1400 Independence Ave., SW., Room 2619-S;
Washington, DC 20250; Telephone number (202) 720-6231; or Fax (202)
690-3732.
Comments should reference docket number AMS-LS-10-0080 and note the
date and page number of this issue of the Federal Register. Submitted
comments will be available for public inspection at http://www.regulations.gov, or during regular business hours at the above
address. All comments submitted in response to this document will be
included in the record and will be made available to the public. Please
be advised that the identity of the individuals or entities submitting
the comments will be made public on the Internet at the address
provided above.
FOR FURTHER INFORMATION CONTACT: Michael Lynch, Chief; USDA, AMS, LS,
LGMN Branch; 1400 Independence Ave., SW., Room 2619-S; Washington, DC
20250; Telephone number (202) 720-6231; or Fax (202) 690-3732.
SUPPLEMENTARY INFORMATION:
I. Background
On December 1, 2000, AMS published the final rule to implement the
LMR program as required by the Livestock Mandatory Reporting Act of
1999 (1999 Act) (7 U.S.C. 1635-1636h) [65 FR 75464]. The purpose of the
1999 Act was to establish a program of information regarding the
marketing of cattle, swine, lambs, and the products of such livestock
that provides information that can be readily understood by producers;
improves the price and supply reporting services of USDA; and
encourages competition in the marketplace for livestock and livestock
products.
The statutory authority for the program lapsed on September 30,
2005. At that time, AMS sent letters to all packers required to report
under the 1999 Act, requesting they continue to submit information
voluntarily. In October 2006, Congress enacted legislation to
reauthorize the 1999 Act through September 30, 2010, and to amend the
swine reporting requirements of the 1999 Act (Reauthorization Act)
[[Page 71569]]
(Pub. L. 109-296). The Reauthorization Act re-established the
regulatory authority for the continued operation of the LMR program and
separated the reporting requirements for sows and boars from barrows
and gilts, among other changes.
On May 16, 2008, USDA published the final regulation to re-
establish and revise the LMR program (73 FR 28606). The rule
incorporated the swine reporting changes contained within the 2006
Reauthorization Act, as well as enhanced the program's overall
effectiveness and efficiency based on AMS' experience in the
administration of the program. The LMR Final Rule became effective on
July 15, 2008. AMS believed that the rule facilitated open, transparent
price discovery and provided all market participants, both large and
small, with comparable levels of market information for cattle, swine,
sheep, beef, and lamb meat.
The Food, Conservation, and Energy Act of 2008 (2008 Farm Bill)
(Pub. L. 110-234) directed the Secretary of Agriculture (Secretary) to
conduct a study to determine advantages, drawbacks, and potential
implementation issues associated with adopting mandatory wholesale pork
reporting. The report from this study concluded that negotiated
wholesale pork price reporting is thin and becoming thinner and found
some degree of support for moving to mandatory price reporting exists
at every segment of the industry interviewed. That study also concluded
that the benefits likely would exceed the cost of moving from a
voluntary to a mandatory reporting program for wholesale pork. The
report was delivered to Congress on March 25, 2010. A copy of the full
report is available on the AMS Web site at http://www.ams.usda.gov/.
On September 28, 2010, the Mandatory Price Reporting Act of 2010
(2010 Reauthorization Act) (Pub. L. 111-239) reauthorizing LMR for 5
years and adding a provision for mandatory reporting of wholesale pork
cuts was enacted. The 2010 Reauthorization Act directs the Secretary to
engage in negotiated rulemaking to make required regulatory changes for
mandatory wholesale pork reporting. The statute requires that the
Committee include representatives from a specified list of interests,
as identified in paragraph IV, B, Interests Involved, of this document.
Further, the 2010 Reauthorization Act states that any negotiated
rulemaking committee established by the Secretary shall not be subject
to the Federal Advisory Committee Act (5 U.S.C. Appendix 2).
II. Statutory Provisions
The Negotiated Rulemaking Act of 1996 (NRA) (5 U.S.C. 561-570); the
Mandatory Price Reporting Act of 2010 (Pub. L. 111-239); the Livestock
Mandatory Reporting Act of 1999 (7 U.S.C. 1635-1636i); and 7 CFR part
59.
III. The Committee and Its Process
In a negotiated rulemaking, a proposed rule is developed by a
committee composed of representatives of government and the interests
that will be significantly affected by the rule. Decisions are made by
``consensus.'' For the purpose of this Committee's proceedings,
``consensus'' has been statutorily defined as unanimous concurrence
among the interests represented unless the Committee agrees to a
different definition.
Following receipt of comments on membership, AMS will establish a
negotiated rulemaking committee representing the identified interests
to negotiate the language of the proposed rule. AMS will be a member of
the committee to represent the Federal Government's statutory mission.
Experience of various Federal agencies in negotiated rulemaking has
demonstrated that using a trained neutral party to facilitate the
process will assist all parties during negotiations to identify their
real interests, evaluate their positions, communicate effectively, find
common ground, and reach consensus where possible. AMS plans to engage
a third-party facilitator for this process. The facilitator will serve
as the chairman of the Committee. After the Committee reaches consensus
on the provisions of the proposed rule, AMS agrees to publish the
consensus language reached by the committee in the Federal Register.
Section 563 of the NRA requires the head of the agency to determine
that the use of the negotiated rulemaking procedure is in the public
interest. Implementation of mandatory pork reporting is required by
Congress. Congress delegated responsibility to the Secretary for
determining what information is necessary and appropriate; and directed
that a rule be promulgated through the negotiated rulemaking process.
AMS expects the Committee will address issues related to, but not
limited to, confidentiality, transportation, frequency of reporting,
export data, and product heterogeneity.
IV. Negotiated Rulemaking Procedures
In compliance with the NRA, AMS will use the following procedures
for guidelines for this negotiated rulemaking. Pursuant to the 2010
Reauthorization Act, this negotiated rulemaking committee shall not be
subject to the Federal Advisory Committee Act (5 U.S.C. Appendix 2).
AMS may modify these procedures in response to comments received on
this document or during the negotiation process.
A. Committee Formation
A committee will be formed and operated in full compliance with the
requirements of NRA.
B. Interests Involved
AMS intends to ensure full and adequate representation of those
interests that are expected to be significantly affected by the
proposed rule. In determining membership, AMS will consider whether the
interest represented by a member will be affected significantly by the
final product of the Committee and whether that interest is already
adequately represented by other members. Under Section 562(5) of the
NRA, ``interest'' means, with respect to an issue or matter, multiple
parties which have a similar point of view or which are likely to be
affected in a similar manner.
AMS is seeking comments on the composition of the Committee and, in
Section D, Request for Nominations, AMS provides a process for the
public to nominate organizations to be appointed to the Committee.
However, to facilitate the process of identifying a Committee and
following guidelines established by the 2010 Reauthorization Act, AMS
is proposing the following list of organizations serve on the Committee
to adequately represent the stakeholders affected by mandatory pork
reporting.
(i) Organizations representing swine producers--American Farm
Bureau Federation, National Farmers Union, National Pork Producers
Council;
(ii) Organizations representing packers of pork, processors of
pork, retailers of pork, and buyers of wholesale pork--American Frozen
Foods Institute, American Meat Institute, Food Marketing Institute,
Grocery Manufacturers Association, National Meat Association;
(iii) Department of Agriculture--AMS;
(iv) Among interested parties that participate in swine or pork
production--Chicago Mercantile Exchange, Livestock Marketing
Information Center, and other interested parties.
C. Membership
As directed by the NRA, the Committee should not exceed 25 members.
Further, AMS believes that this Committee will adequately
[[Page 71570]]
represent the interested parties and operate most effectively with no
more than 12-16 members. The facilitator will not count against the
membership. Section 568(c) of the NRA states:
Members of a negotiated rulemaking committee shall be
responsible for their own expenses of participation in such
committee, except that an agency may, in accordance with section
7(d) of the FACA, pay for a member's reasonable travel and per diem
expenses, expenses to obtain technical assistance, and a reasonable
rate of compensation, if (1) Such member certifies a lack of
adequate financial resources to participate in the committee; and
(2) The agency determines that such member's participation in the
committee is necessary to assure an adequate representation of the
member's interest.
D. Request for Nominations
AMS solicits nominations for appointment to membership on the
Committee. Members can be individuals or representatives of
organizations. An organization should identify the individual who will
be its representative. Committee members need to have authorization to
negotiate on behalf of their interests and be willing to negotiate in
good faith. AMS interprets good faith to include: (1) A willingness to
bring all issues to the table; and (2) not to discuss the issues in
other forums. Good faith also includes a willingness to move away from
taking adversarial positions and instead to explore openly all relevant
and productive ideas that may emerge from the discussion of the
Committee.
Authorization for each application or nomination must include:
1. The name of the applicant or nominee and a description of the
interests such person will represent;
2. A description of the person's qualifications and expertise
regarding those interests;
3. Whether the participant will be seeking agency resources to
participate on the committee; and
4. A written commitment of the applicant or nominee to actively
participate in good faith in the negotiated rulemaking.
E. Tentative Schedule
Once AMS makes the final determination on Committee membership, it
will publish another document in the Federal Register announcing the
final list of members. A proposed agenda and schedule for completing
the work of the Committee, including a date for the first meeting, will
also be included in the document.
Once formally established and assembled, the Committee will have
reasonable latitude to determine appropriate number and frequency of
meetings necessary to achieve its objectives. However, for planning
purposes, AMS expects the Committee will meet three to four times at
various locations across the country. AMS expects that each meeting
will last approximately three days. The Committee's work is expected to
occur over the course of 3 to 4 months in order to allow sufficient
time to reach consensus for a proposed rule.
AMS and its facilitator will, throughout the process, provide
necessary technical and logistical support to the Committee. In
addition, once the Committee is established, it may seek advisors or
subject matter experts to provide information valuable to the decision-
making process.
V. Requests for Nominations and Comments
To comply with negotiated rulemaking procedures, AMS invites
written comments on this initiative and nominations for the negotiated
rulemaking committee. Nominations are for all interests that could be
affected by mandatory pork reporting and must comply with paragraph IV,
D, Request for Nominations, of this document. All written comments and
nominations must be sent to an appropriate address as listed in the
ADDRESSES section of this Notice.
Dated: November 18, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-29551 Filed 11-23-10; 8:45 am]
BILLING CODE 3410-02-P