01/09/2006

R-CALF: Cattle Producers Request District Court Hearing on BSE Litigation
United Stockgrowers of America 

(Billings, Mont.) – R-CALF USA, on Friday, filed a motion in U.S. District Court – District of Montana (District Court) to request a hearing before U.S. District Judge Richard F. Cebull in its litigation against the U.S. Department of Agriculture regarding the agency’s minimal risk rule (Final Rule) issued in January 2005, which dealt with opening the United States’ borders to cattle and beef products from countries affected by bovine spongiform encephalopathy (BSE).

On March 2, 2005, the District Court issued a preliminary injunction, which prevented USDA’s Final Rule from being implemented and, in effect, continued a ban on the import of Canadian cattle and certain beef products into the United States. However, USDA appealed that decision, and in July 2005, the 9th U.S. Circuit Court of Appeals (9th Circuit) reversed the preliminary injunction, which reopened the Canadian border to live cattle under 30 months of age and beef from cattle under 30 months of age.

R-CALF USA’s position is that the 9th Circuit decision does not limit, or eliminate, the need for oral arguments of the case and a ruling by the District Court on the summary judgment motions filed by both R-CALF USA and USDA.

“In fact,” the motion states, “events since the briefing of the summary judgment motions only reinforce the need for this Court to review and vacate USDA’s January 4, 2005 Final Rule allowing importation of cattle and beef from Canada.”

R-CALF USA’s motion explains that the facts in the case had not been fully developed when the 9th Circuit considered only the narrower question of whether R-CALF USA was entitled to a preliminary injunction while the merits of the entire case were still being developed in the District Court.

“Back in July, the 9th Circuit heard only some very limited facts that were presented during the March hearing before Judge Cebull, and since then, even more scientific information has been discovered about BSE, indicating that USDA should be exercising more caution about this risk, not less,” explained R-CALF USA President and Co-Founder Leo McDonnell. “We’re asking the District Court to resume its consideration of our case, and in our motion we’ve pointed out the numerous inconsistencies in USDA’s actions that warrant a careful, critical review by Judge Cebull.”

The motion also points out that the 9th Circuit decision did not address all of the evidence and arguments R-CALF USA has now presented in its challenge against the Final Rule, including the evidence that indicates “USDA’s regulation of BSE has been guided by consideration of inappropriate factors rather than sound scientific judgment…a desire to have open trade with Canada and the express financial impact on multinational meatpackers…”

The 9th Circuit said that federal agencies generally should be granted “deference” in their decision-making, but in this case, deference to some of USDA’s conclusions simply is not warranted (see notes below). Because the 9th Circuit did not address these considerations, R-CALF USA’s motion argues the District Court should not feel bound by the 9th Circuit’s conclusion that no quantification is needed of the risk of such a major, precedent-setting action as the Final Rule.

The motion also references two recent federal rulemakings that demonstrate USDA is not applying sound scientific judgment to the BSE issue, and the motion points to USDA’s recent rule allowing the importation of beef from animals of any age from Japan (Japan Import Rule) – despite the fact Japan has not implemented the minimal preventive measures USDA determined were necessary for imports from countries known to have BSE.

“USDA’s assertions underpinning the Japan Import Rule are so inconsistent and contradictory to the assertions it made in the Final Rule that it leaves no doubt that USDA is ignoring science,” noted McDonnell. “USDA, and FDA for that matter, have failed to provide – for both the U.S. cattle herd and U.S. beef consumers – adequate protections against the increased risk caused by importing cattle and beef from BSE-afflicted countries, with many of those protection measures being recommended by leading U.S. and international BSE scientists.

“As a result, numerous pathways of BSE infectivity remain, and this has increased, rather than decreased, the United States’ risk of BSE, particularly given that we have now resumed imports of cattle and cattle products from countries with an inherently greater risk for BSE,” McDonnell continued. “In order to provide multinational meatpackers with cheap foreign supplies, USDA has left the U.S. with some of the least protective BSE mitigation requirements of any developed country, turning the U.S. into a dumping ground for meat and livestock other modern nations have banned.

“The solution is to immediately correct those known deficiencies,” he emphasized. “Recently, fast-food giant McDonald’s, as well as a group of the world’s foremost scientific experts on BSE, all filed formal comments with the Food and Drug Administration (FDA) that back up, with solid scientific research, the message and the position that R-CALF has maintained since the onset of our case.”

R-CALF USA Region IX Director James Fudge said that R-CALF USA’s motives, from the beginning, have been not only to strengthen our domestic safeguards against BSE, but also to get USDA to implement Mandatory Country-of-Origin Labeling (M-COOL), and force the agency to harmonize global beef-trade practices.

“Our goal has been to work with the agency to these common ends, and avoid litigation if possible,” said Fudge. “But in the end, we had to stand up for what was right to ensure the long-term viability of cow/calf producers around the country.

“The ones most affected by USDA and FDA rules always have had the least influence with those running the agencies and making the decisions,” Fudge continued. “This court is the only place that has allowed us to be heard and for that we are grateful, regardless of the outcome.

“We hope in the future that USDA will spend as much time and effort responding to the needs of those affected by its rules as the agency has spent defending itself against those they are supposed to represent,” Fudge emphasized.

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Note: A few examples to show why USDA should not be granted deference in this case and how wayward the agency has strayed from its own policies include the following:

1) USDA’s own procedures, when deciding whether to allow into the U.S. imports from a region potentially impacted by disease, state that while a qualitative risk analysis is generally adequate for regions considered to be free of certain diseases, regions in which the disease is known to exist due to recent outbreaks are deemed to pose a higher level of risk and have historically been approached quantitatively, because such an approach allows the assessment of specific risk concerns, testing of assumptions, analysis of attendant uncertainty, and evaluation of the effectiveness of proposed risk mitigation measures. USDA did not adhere to these standards when evaluating the risk of importing Canadian cattle and beef into the United States.

2) The “Animal Disease Risk Assessment, Prevention and Control Act of 2001, PL 107-9,” which was not considered in the 9th Circuit’s opinion on the preliminary injunction, reflects a congressional objective “to make certain that the Congress and the American public are fully informed as to the reliability of our nation’s animal health inspection system (and) its ability to protect our domestic herds and the American public from the potential introduction into the United States of” BSE.

3) USDA itself, in the Federal Register Notice for the Japan Import Rule, acknowledges the agency should not base its decisions on whether to restrict imports of cattle or beef from countries affected by BSE on potential effects to international trade, and yet USDA repeatedly has relaxed requirements for imports from Canada expressly to reduce an impact on trade.

4) USDA reversed its judgment that banning cattle from countries with BSE was one of the most important measures necessary to prevent the introduction of BSE into the United States – without the agency providing adequate justification and without referencing new information that could justify USDA’s reversal of its position.

5) In explaining its Final Rule to allow imports from Canada, USDA said Canada’s surveillance testing of cattle was one of three key BSE mitigation measures…only to proclaim less than a year later in its Japan Import Rule that surveillance testing is not a BSE mitigation measure at all.

6) FDA’s proposed amendments to the feed ban do not remove all of the loopholes USDA left in the Final Rule for FDA to address. However, FDA does acknowledge the validity of numerous concerns raised by R-CALF USA about the potential ineffectiveness of the feed ban — concerns that USDA has told the courts are inconsequential.

7) USDA’s BSE risk mitigation measures are not foolproof, although the agency would like the public and the courts to think they are. In August 2005, a load of cattle imported from Canada to Wisconsin included one animal over the age limit of 30 months, and eight pregnant heifers – violations of the Final Rule. Unfortunately, the animal over the age limit was slaughtered and the meat distributed without applying BSE mitigation measures. Media reports also quoted a Canadian official who confirmed that a total of 15 pregnant animals were detected in shipments from Ontario and western Canada. These instances confirm R-CALF USA’s concern that the Final Rule is inadequate to protect the U.S. from this type of risk.

8) Another example of the vulnerability of USDA’s BSE risk mitigation measures — but one that USDA never acknowledged in its assertion that Canadian imports present virtually no risk — recently was revealed by an investigation of the agency’s Food Safety and Inspection Service (FSIS) enforcement of policies to assure removal of specified risk materials (SRMs) from certain cattle. The investigation uncovered more than 1,000 violations of BSE risk mitigation measures over an 18-month period at slaughterhouses around the country – confirming that SRM removal policies were not comprehensively being implemented.

Note: To view the R-CALF USA’s complete motion and exhibits, visit www.r-calfusa.com and go to “News Releases.” Find the link to this particular news release, and you can access the PDF files there.