WASHINGTON - Open Markets Institute has submitted a comment regarding the United States Department of Agriculture’s (USDA) proposed rule to better define unfair practices under the Packers and Stockyards Act (PSA).

Open Markets urges the USDA to finalize this rule, which is well within the agency’s Congressionally delegated authority. To further strengthen the rule, we recommend that:

• The proposed rule should not treat private causes of action differently than government enforcement actions.

• USDA clarify that cross-market balancing is prohibited when assessing the countervailing benefits of an unfair practice for individual market participants.

• The USDA clearly define what constitutes a legitimate business justification for an unfair practice that harms markets and name certain unfair methods of competition that cannot entertain business justifications.

• USDA clarify that the burden of proving a legitimate business justification lies with the defendants. However, plaintiffs must retain the opportunity to rebut a defendant’s asserted benefits by showing that a less restrictive alternative exists.

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