November 29, 2004

Ms. Tess Butler
1400 Independence Avenue, SW, Rm. 1647-S
Washington, DC 20250-3604

Email: [email protected]

Re: Notice of Request for New Information Collection
Federal Register September 9, 2004

These are comments submitted by National Meat Association on behalf of its Beef Packer, Meat Processor, Pork Packer and Lamb Processor members in response to the agency’s September 9, 2004, Federal Register notice regarding information collection. The agency is seeking OMB approval for two new information collection activities to support a large livestock and meat marketing study. Subsequent to the September 9, 2004 Federal Register notice, many of NMA’s member companies were asked, by GIPSA by letter dated October 1, 2004 and directed to maintain and preserve detailed records pertaining to livestock and meat operations for the period October 6, 2002 through September 30, 2004, in order to be prepared to respond to the surveys described in the Federal Register notice, even though the information collection described in the Federal Register notice has not yet been approved by OMB.

It is the view of National Meat Association that the proposed study and data collection hugely exceeds the legislative intent for which funds were provided in Pub.L. 108-7, 117 Stat. 22. Unless the study and data collection are revised and focused, the work is unlikely to produce the information which Congress requested, and the data collection will be overbroad, heavily burdensome to companies mandated to participate, and in clear violation of the Paperwork Reduction Act.

House Report 107-623 states the purpose of the study for which funds were being appropriated:

    The Committee is persuaded that the time has come for an earnest and objective study of the market and economic implications of laws that would prohibit meatpackers from owning, feeding or substantially controlling livestock.


    Accordingly, the Committee directs the Secretary to conduct a study of the issues surrounding a ban on Packer Ownership, particularly as to the economic impacts on the United States as a whole, and on individual states. The study shall include, but not be limited to, examination of alternative procurement and transfer methods for livestock in the farm to retail chain, including producers that participate with packers and vertically-integrated livestock or meat production; agricultural credit for livestock producers; livestock and grain prices and the quality and consistency of meat products and livestock under a ban.

GIPSA’s Performance Work Statement for the present study goes well beyond this charge, identifying five purposes for the proposed data collection,, only one of which (highlighted in bold type below) seems relevant to the charge set forth in the Appropriations Report:

    Give producers better information on which to base their decisions about whether to participate in non-traditional marketing arrangements and, if so, which types of arrangements are best suited to their needs.

    Contribute to better public understanding of the role of alternative marketing arrangements, the extent of their use, reasons why firms enter into them, and the implications of such arrangements.

    Help identify emerging market information needs of livestock producers and other market participants.

    Make an important contribution to USDA and Congress in deciding whether restrictions on use of captive supplies are warranted. (emphasis supplied)

    Assist GIPSA in enforcing the Packers and Stockyards Act by contributing to the Agency's understanding of changing market practices and by identifying areas that the agency may need to include in its investigation plans.

With all due respect, it is only the fourth of these five stated purposes that is directly responsive to the request for information contained in the Report of the House Appropriations Committee. The survey has obviously been structured to serve an agenda other than the agenda set by Congress.

We have been provided with draft documents dated October 28, 2004 for the collection of transaction by transaction data from 60 beef packing establishments, 60 pork packing establishments, 30 lamb packing establishments and 40-50 meat processing establishments. This transaction by transaction data is to be submitted for the period from October 1, 2002 through September 30, 2004. The contractor which has been engaged for this work has apparently been unaware of the data which most of the establishments to be surveyed are already submitting to the Agricultural Marketing Service (AMS) pursuant to USDA’s Mandatory Price Reporting program. GIPSA has apparently made no arrangements to coordinate its contractor’s proposed data collection with either the format or the substance of the transaction by transaction data that is already being submitted to AMS.

The proposed massive new collection of transaction by transaction data is inappropriate not only because it is duplicative of information already obtained by AMS, but also because there has been no demonstration or discussion of how any of this transaction by transaction survey information is necessary and relevant to the accomplishment of the key purpose of this study, which is to provide meaningful advice to the Congress as to whether restrictions on packer ownership or contracting of cattle are warranted. In addition, it appears that GIPSA’s proposed contractor has not been advised to accord any priority to compliance with the Paperwork Reduction Act. That law requires that federal agencies and contractors working for them, only collect information which is necessary for the proper performance of the function at hand and minimize the burden of the collection of information on respondents.

The proposed data collection, if allowed to go forward, will require responding packers to submit highly sensitive, proprietary information, which will then be disseminated in less than completely confidential format to consultants retained by GIPSA’s contractor at a variety of remote locations. Packers are hugely concerned that their data will be reviewed by persons who have been or will be retained by legal counsel that have brought or may bring claims against them, and that contractual confidentiality provisions will be inadequate protection for the immense amount of confidential information required by this Notice. The risk of intentional or unintentional misuse or disclosure of confidential information is both an additional burden which GIPSA needs to take into account in bringing itself into compliance with the Paperwork Reduction Act and a reason to take the strictest possible measures to protect the submissions.

The information submitted for this study will be protected by both the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) and the confidentiality provisions of the Packers and Stockyards Act. OMB, the agency charged with administering CIPSEA, is specifically empowered to coordinate federal agency compliance with CIPSEA.

To ensure confidential treatment of the information requested by GIPSA, and to conform to the goals of CIPSEA, OMB and GIPSA should agree that GIPSA will adopt the confidential information handling practices used by the U.S. International Trade Commission (ITC), whereby the sharing of confidential economic information with lawyers and consultants only occurs under a protective order, and where each and every person who is subject to that protective order, including both professional and administrative personnel with any access to the confidential information, is identified both to the ITC and to the people who are providing the information. This ITC practice provides the best model for the strict level of protection that the packers and processors are entitled to expect from contractors and subcontractors handling their economic submissions to GIPSA. Under ITC practice, at the end of the proceeding, the confidential information has to be either returned or destroyed. Requiring that each individual with access to confidential economic information sign an acceptance and acknowledgement of the protective order provides subsequent accountability. See generally 19 C.F.R. § 201.6 (ITC handling of confidential business information).

Finally, the product of the proposed survey is unlikely to meet the data quality requirements expected by OMB. Because GIPSA’s contractor will be re-inventing the wheel in seeking and tabulating transaction by transaction data, there will inevitably be questions regarding the quality of the survey data itself. Then when GIPSA and its contractor attempt to apply the inevitably questionable raw data to address specific questions, their analysis will be even more uncertain than the underlying data. National Meat Association does not believe that either the data collection or the use of that data outlined by GIPSA and RTI will meet the fundamental data quality standards expected by OMB.

For all of the reasons described above, National Meat Association urges that the proposed information collection activities be substantially revised to focus on the specific purpose for which the study funds were appropriated by the Congress and to come into compliance with both the Paperwork Reduction Act and the Confidential Information Protection and Statistical Efficiency Act of 2002. Because the revisions necessary to meet this goal are very substantial, we recommend that GIPSA withdraw this Notice, withdraw the letters that it has sent to packers and processors, and re-issue a Notice in conformity with the legislative intent as set forth above.

Thank you for your consideration of these comments.

Rosemary Mucklow
Executive Director

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