WASHINGTON – The Meat Institute confirmed on Sept. 11 that it submitted comments for the proposed Fair and Competitive Livestock and Poultry Markets rule.

The trade association said it believes the Agricultural Marketing Service (AMS) of the US Department of Agriculture attempts to circumvent Congress and the courts to reverse the longstanding legal standard that a plaintiff must demonstrate harm to competition to sue and win under the Packers and Stockyards Act Section 202(a) or (b).

“This position was wrong before and is wrong now,” said Mark Dopp, chief operating officer and general counsel of the Meat Institute.

Later in its comments, Meat Institute also stated that it believes the proposed rule violates the Constitution and Administrative Procedure Act.

“Changing the harm to competition standard requires Congressional action and that fact is highlighted by the Supreme Court’s decision in West Virginia v. EPA,” Dopp said. “In addition, the proposal includes standards so vague that, if adopted, it would be impossible for a regulated entity to know how to comply.”

Other issues raised by the Meat Institute are that it disagreed with the agency’s economic analysis when introducing the rule.

“AMS seems to think the fact that conducting an analysis is hard means the agency need not do one. AMS is certainly correct when it said, ‘Applying a quantified dollar value to the improvement would be a difficult task,’” Dopp stated.

“The inefficiencies and litigation that will result from implementing the proposal will increase the costs of domestic beef, pork and poultry production,” he continued. “Such a result would harm American consumers who would pay more for meat, and it would harm domestic livestock producers, poultry growers, packers, and dealers by decreasing demand for domestic products and hurting exports.”

Dopp later commented that in the trade association’s opinion, the USDA did not try to estimate the litigation costs regulated entities would incur if the proposal became a final rule.

When the USDA made the initial proposed rule announcement in June, the agency said it would clarify the interpretation of “unfair” as it appears in the Packers and Stockyards Act.

“Entrenched market power and the abuses that flow from it remain an obstacle to achieving lower prices for consumers and fairer practices for producers,” said Agriculture Secretary Tom Vilsack in June. “Today’s proposed rule stands for clear, transparent standards so that markets function fairly and competitively for consumers and producers alike. With our whole-of-government approach to competition and resiliency, the Biden-Harris Administration is fighting every day to lower costs for American families and give farmers a fairer shake.”

During July, the AMS announced that the comment deadline for the proposed rule was extended from Aug. 27 to Sept. 11.