USDA Ordered to Justify Claim that it Satisfied the Injunction Awarded to R-CALF USA, Consumer Groups, Other Cattle Groups and Individual Ranchers

R-CALF United Stockgrowers of America, "Fighting for the U.S. Cattle Producer", Press Release 6/27/12

Billings, MT - After nearly four years of agency inaction, the previously intense, eight-year legal battle waged against the U.S. Department of Agriculture (USDA) by U.S. cattle producers and U.S. consumers over the agency's persistent efforts to increase the risk of introducing bovine spongiform encephalopathy (BSE or mad cow disease) into the United States has reignited.

In 2008, the U.S. District Court for the District of South Dakota (the Court) granted R-CALF USA, consumer groups, other cattle groups and individual ranchers an injunction against the USDA's final rule issued Sept. 18, 2007. That 2007 final rule reopened the U.S. border to Canadian cattle older than 30 months of age and Canadian beef from cattle of any age, even while Canada continued to experience numerous outbreaks of BSE in cattle that met the age requirements for export to the United States.

The Court found that USDA had violated its own rulemaking process in issuing the 2007 final rule and remanded the rule to USDA. The Court ordered the agency to provide the public with proper notice and comment period, to file quarterly progress reports with the Court, and to make any changes to the final rule the agency deemed necessary after reviewing public comments.

For nearly four years, USDA drug its feet and though it initiated some of the Court's directives, it refused to fully comply with the injunction. Until recently, it was uncertain what USDA was up to.

In March 2012, USDA's strategy was revealed. The agency issued an entirely new proposed rule that not only alters the 2007 final rule, but also, it greatly increases the risk of exposing U.S. citizens and the U.S. cattle herd to BSE. The agency proposes to open U.S. borders to imports from countries such as the United Kingdom, Ireland, Portugal and Spain where thousands of BSE cases have been detected in cattle and more than 200 human deaths have been linked to the human form of BSE. Five of those human deaths occurred as recently as 2011.

R-CALF USA CEO Bill Bullard reacted to USDA's proposal by stating: "This Proposed Rule by the Obama Administration represents a greater risk to the safety of our U.S. food supply than any previous rulemaking by any previous Administration in recent memory."

Entwined within USDA's new proposal was a section purporting to comply with the Court's injunction. And, in March USDA sent a notice to the Court stating it had finally fulfilled the Court's nearly four-year-old 2008 order. R-CALF USA replied to USDA's notice and objected to USDA's claim. It informed the Court that USDA had only partially complied with the Court's order because the agency had not yet implemented the changes to the 2007 final rule that it deemed necessary. Those changes, R-CALF USA stated, have so far only been proposed in the agency's newly proposed rule.

R-CALF USA also indicated to the Court that during the four years that USDA drug its feet, numerous factual developments have occurred that reconfirm and heighten the concerns regarding the 2007 final rule. Those developments include

• Seven additional cases of BSE uncovered in Canada, all of them in cattle that were born years after the March 1, 1999 date on which USDA says the Canadian feed ban was effectively enforced and therefore virtually eliminated exposure of Canadian cattle to BSE.
• Numerous examples where parts of Canadian cattle banned from importation by the 2007 final rule were intercepted at the U.S. border, further supporting the concern that the mitigation measures USDA is relying on to protect U.S. consumers and the U.S. cattle herd from potential BSE infection in Canadian cattle may not be complied with uniformly in practice.
• A new case of BSE was discovered in the United States (the first since March 2006), in a California dairy cow that died on the farm in April 2012. That case is still being investigated by USDA and others, and its significance for U.S. BSE risk mitigation measures is not yet known.
• New scientific studies show the potential for BSE to be found in a wider range of cattle organs. One recent study of the particular strain of BSE that USDA stated had infected the California cow detected in April 2012 discovered infectivity in a variety of peripheral nerves, including the nerves of the forelimbs of cattle, albeit at very low levels. Another study suggests that in humans, this new strain of BSE is a more virulent strain.

R-CALF USA urged the Court to stay the lawsuit and continue requiring quarterly reports from USDA pending the agency's completion of its new rulemaking process and the completion of the agency's investigation into the cow detected in California with what USDA claims to be a different strain of BSE.

On June 27, the Court, among other things, ordered USDA to state when the new rulemaking is expected to be final, and to justify its claim that it had fulfilled the Court's 2008 order.

"It's a sad state of affairs when food producers and food consumers have to fight their own government to protect the safety of our nation's food supply, but that's exactly where we find ourselves with the Obama Administration today," concluded Bullard.

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R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) is a national, nonprofit organization dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. For more information, visit www.r-calfusa.com or, call 406-252-2516.