Federal Register, Volume 75, Number 226, November 24, 2010, Pages 71519-72652 Page: 71,569
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Federal Register/Vol. 75, No. 226/Wednesday, November 24, 2010/Proposed Rules
(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
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
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.
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
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
Exchange, Livestock Marketing
Information Center, and other interested
As directed by the NRA, the
Committee should not exceed 25
members. Further, AMS believes that
this Committee will adequately
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United States. Office of the Federal Register. Federal Register, Volume 75, Number 226, November 24, 2010, Pages 71519-72652, periodical, November 24, 2010; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52807/m1/59/: accessed April 24, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.