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R-CALF Fails in Latest Bid to Block Imports PDF Print E-mail
Written by Steve Dittmer   
Tuesday, 08 July 2008
AFF Sentinel Vol.5#30
R-CALF, with LAG partners Consumer Federation of American, Public Citizen and others, sued last fall requesting a preliminary injunction to block the importation of OTM live cattle and beef from minimal risk regions like Canada. The Final Rule had been published Sept. 18, 2007 and implemented Nov. 19, 2007. When Judge Cebull in South Dakota's Eighth District Court had suffered health issues, the case had been sent to Judge Lawrence Piersol. The convoluted path of this rule and its stretched time period, as well as USDA suspending its implementation until a later time, led Peirsol to decide a new notice and comment period was proper, even though at least two notice and comment periods had been held on the OTM rule (in Nov. 2003 and March 2004). Piersol ruled that any delay in implementation of a rule, in and of itself, should have notice and comment periods for a government agency to explain its reasons. USDA had contended that by now, simply notifying the public the rule was going into effect was sufficient.

The suit had been filed on multiple grounds but Piersol ruled only on this one and did not consider any others - for now. USDA will be required to go through its notice and comment procedure on the OTM beef issue and "to revise any provisions of the OTM Rule it deems necessary." The "parties" shall submit quarterly updates to Judge Peirsol regarding the status of administrative proceedings. The "substance of the OTM Rule may be different after further administrative proceedings, but plaintiffs [R-CALF et al] will not be precluded from reasserting their challenges to the merits of the OTM Rule at a later date, if necessary."
The first argument that R-CALF et al had advanced in their motion for a preliminary injunction was that USDA had failed to "engage in notice and comment" before lifting the ban on OTM beef. Actually, USDA had published notice in Sept. 2007 but not requested comment. The agency had contended that notice and hearings before the January 2005 rule, as well as reopening the comment period in March, 2004 on an earlier version - specifically asking for OTM beef comment - was sufficient.

But Piersol ruled the plaintiffs were "likely to prevail on the merits" of their claim another notice and comment period was necessary.

"The effective date of a rule is generally more than procedural and its suspension or delay is usually subject to rulemaking," Piersol said. Interestingly, in the four cases Piersol cited as delay precedents, three involved the National Resources Defense Council and one, Public Citizen.

The judge was also concerned that USDA's Sept. 2007 notice had not discussed results and analysis of investigations after March 2005. He felt findings regarding the cases of Canadian cows born post-feed ban should have been published in the process of lifting the delayed OTM ban.

Pages 15 & 16 of Piersol's opinion contain the crux of his legal analysis of the case. The questions the judge raises in critiquing the chain of events certainly highlights the tangle typical when lawsuits continually intrude upon science, commerce and happenstance in bureaucratic jungles. The trail is certainly an evolutionary coil rather than a logical straight line. Piersol was particularly concerned that technically, OTM cattle and OTM beef are treated somewhat differently.

The notice and comment routine is unlikely to reveal much useful new information but cost the industry and USDA time and money.

The best we can hope for is the recognition, once and for all, that the overwhelming tidal wave of Canadian BSE-infected cattle R-CALF and the LAG contended were poised to engulf North America -- never existed. Rather it was a tiny blip, by far one of the lowest concentrations of cases per million head on OIE's chart -- that peaked in 2006.
R-CALF's continual effort to destroy trade and reduce the value of cattle must end. In fact, the closest parallel to short-sighted, R-CALF Mr. Magoos we can think of right now are the union members in South Korea's automakers trying to poison that country's trading relationship with a key customer - America.

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Last Updated ( Friday, 12 September 2008 )
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