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[Federal Register: November 24, 2010 (Volume 75, Number 226)]
[Proposed Rules]               
[Page 71568-71570]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no10-39]                         

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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
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