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10 reasons preliminary injunction against OTM rule is justified

Eleven cases of bovine spongiform encephalopathy (BSE) have been detected in Canadian-born cattle, seven since the beginning of last year, yet on Nov. 19, the U.S. Department of Agriculture (USDA) wants to implement its OTM (over 30 months) Rule, which would open the Canadian border to imports of live cattle born after March 1, 1999, along with their specified risk materials (SRMs) intact. These SRMs are banned in all animal feeds in Canada, but not in the United States. Beef products – from all older Canadian cattle – also would be allowed into the United States as a result of the OTM rule.

“We believe USDA relied on inappropriate considerations when the agency decided it would intentionally allow imports of BSE-infected cattle into the U.S., which likely will result in BSE occurring in the U.S. cattle herd,” said R-CALF USA CEO Bill Bullard. “We are hoping the District Court will agree and immediately issue a preliminary injunction to prevent USDA from going forward with its inappropriate OTM Rule.”

R-CALF USA believes a preliminary injunction in this matter is justified for the following reasons:

1. Empirical evidence contradicts USDA’s claim that the risk of exposure to BSE is “infinitesimal.” The facts show that seven of Canada’s 11 native cases of BSE were detected since last year, five of which were born after March 1, 1999, disproving completely USDA’s claim that there would be an “extremely low likelihood” that cattle born after that date would be exposed to BSE.

2. The OTM Rule fails to provide meaningful mitigation against cross-contamination of animal feed, which has been found to be a leading cause of BSE’s spread in Canada.

3. The OTM Rule inappropriately relies on SRM removal to address known pathways of infectivity that have not been mitigated (for example, cross-contamination, poultry litter and plate waste), despite the fact that the efficacy of SRM removal has not been demonstrated directly in any scientific studies and is based on numerous, unverified hypotheses.

4. USDA has violated notice-and-comment requirements imposed on federal agencies when existing regulations are amended. The OTM Rule unlawfully amends regulations to allow the importation of OTM beef, though USDA never issued a notice, nor sought comments on this issue. In fact, the proposed OTM Rule issued in January states that the agency was not proposing to amend its regulations for OTM beef.

5. USDA is acting outside the scope of its authority by ignoring Congress’ mandate to prevent the introduction and dissemination of BSE within the United States. Instead, USDA has applied an improper legal standard by authorizing the importation of an estimated 19 to 105 BSE-infected cattle into the U.S., which USDA estimates will lead to the infection of between 2 and 75 domestic cattle.

6. USDA’s stated purpose for the OTM Rule is not authorized by its statutory mandate to protect the health and welfare of U.S. livestock and people. Instead, USDA states that the purpose of the OTM Rule is to “normalize trade” and to encourage other countries to lift their import restrictions.

7. USDA failed to respond to important public comments regarding the potential that many more OTM cattle will be imported from Canada due to the substantial SRM disposal costs that will be incurred in Canada (due to Canada’s July 2007 feed ban improvement), but not in the United States. This issue is critical because the risk of BSE introduction and the negative economic impact caused by the OTM Rule is directly proportionate to the numbers of cattle imported.

8. USDA supports the OTM Rule with inconsistent statements. For example, USDA states that Canada detected more BSE cases because it increased testing, but Canada decreased testing in 2006 as compared to 2005, yet detected more infected cattle in 2006 than in any other year (five animals). Also, USDA claims that Canada’s testing shows that Canada’s feed ban was effective, while simultaneously claiming that test results cannot be used to distinguish whether there were more cases born before the feed ban than after. Additionally, despite the fact that more than half of Canada’s BSE cases were born after Canada implemented its feed ban, USDA claims Canada’s feed ban has been effective since 1999 (after which five cases have been detected). Also, USDA described Canada’s risk mitigation measures in a manner that is directly contradicted by the OTM Rule, as the OTM Rule states Canada is testing all birth mates and feed mates of BSE-infected cattle while USDA claims it was not. And, USDA claims that additional cases of BSE will have minimal economic impact to the U.S. cattle industry, even though current export markets remain severely restricted and South Korea (once our third largest export customer) does not presently accept any beef from the United States.

9. USDA failed to meaningfully respond to requests that Canadian OTM cattle be tested for BSE at slaughter. USDA responded by claiming that most imported cattle will be younger than 30 months of age, even though the requests were specifically for OTM cattle, not younger cattle. In addition to this non-responsive answer, USDA ignored the fact that billions of pounds of OTM beef also would be imported into the U.S., and ignored the fact that other countries have detected numerous cases of BSE in cattle not displaying clinical signs of the disease, but only because they were testing for the disease. USDA also failed to address comments that stated testing would mitigate the adverse impacts on domestic and foreign demand for beef.

10. The OTM Rule is in conflict with existing regulations. The OTM Rule relaxes rules for countries that already meet the agency’s existing regulations, which require measures to prevent the establishment of BSE to be in place before the first native case of BSE is detected. USDA acknowledges that BSE is established in Canada; therefore, by definition, Canada did not have appropriate measures in place prior to detecting its first case of BSE to meet the requirements of existing regulations. Additionally, the OTM Rule allows beef from Canadian cattle of any age into the U.S. – even from cattle born years before the 1997 feed ban – despite the fact that USDA’s current regulations only allow beef from cattle that were subject to a ruminant-to-ruminant feed ban.

Note: To view a copy of the Plaintiffs request for a preliminary injunction, visit the “BSE-Litigation” link at, or contact R-CALF USA Communications Coordinator Shae Dodson.

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