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USDA is Able to Change Proposed Minimal-Risk Rule Legally

Odds are live cattle under 30 months of age will begin heading south on March 7.

It's been nearly two years since live cattle from Canada have been able to head south to the United States. But it appears that could finally be changing this March 7.

When USDA published its rule that establishes minimal risk regions Dec. 28, the agency was hit from both sides with lawsuits. One group (American Meat Institute) said the rule didn't go far enough because it allowed meat from cattle over 30 months of age but not live cattle. The other group, (RCALF) said the USDA was abandoning OIE guidelines in its rulemaking procedures and asked for a court injunction to prevent the border from reopening.

The latest twist in the ongoing saga is new Secretary of Agriculture Mike Johanns' decision to remove the part of the rule that would allow for boneless beef over 30 months of age but not live cattle over 30 months of age. But with a rule that took over a year to publish, can the USDA just pull out a portion of the rule without an ongoing comment period and just weeks before the rule is to go into effect?

The answer is "yes" according to Jim Rogers, Animal and Plant Health Inspection Service spokesman. Because Johanns made the decision to just "delay" the portion of the rule that addresses cattle over 30 months, all USDA has to do is publish that information in the Federal Register.

Examining AMI's case

AMI's suit centers around the fact that there is no additional risk of allowing Canada to ship cattle over 30 months of age compared to the beef of the same aged animals.

Upon filing its initial lawsuit on December 30, 2004, AMI says that the international trade guidelines established by the Office of International Epizootics (OIE), Canada's response to its cases of BSE, and the system set in place prior to Canada finding its first case of BSE, are more than adequate to justify full trade in cattle and beef products with Canada, regardless of an animal's age.

Mark Dopp, AMI's senior vice president for regulatory affairs and general counsel, says oral arguments for its hearing in Washington, D.C. is scheduled for Feb. 23. Although the Secretary's decision somewhat changes how AMI treats the rule, Dopp says AMI will still be fighting to have complete trade resumed. It hopes the court will require USDA to do so.

When Johanns announced the delay in the older cattle, he also said he was "asking U.S. officials to move forward in consideration and development of a plan to allow imports of animals 30 months and older for slaughter as well as beef from over 30-month animals as the next step in resuming full trade with Canada," Dopp says that since Johanns has already called for this it may make the case less relevant if USDA is already choosing to act freely on moving forward on resuming full trade.

R-CALF will wait longer for hearing

Feb. 23rd's hearing will be significant for the resumption of trade, but most eyes will be on R-CALF's hearing scheduled for March 2. R-CALF contends that USDA is not using scientific information in making rulemaking decisions.

For instance, a statement from R-CALF expresses disappointment with USDA for USDA is only asking that tonsils and intestines be removed from slaughtered Canadian beef coming into the United States. The agency is not requiring the removal of all Specified Risk Materials (SRMs), which is unacceptable.

R-CALF USA CEO Bill Bullard says, "The Final Rule ensures that Canada will be the only BSE-affected country in the world that is not required to remove high-risk tissues in cattle until they are more than twice the age of risk-mitigation requirements established by international standards and practiced by all other countries affected by BSE."

APHIS has a document that disputes several of R-CALF's concerns with the rule. It can be found by clicking HERE.

Senate also tries to overturn rule

In an effort to prevent Canadian cattle and beef from entering the U.S., Sen. Kent Conrad, D-N.D. joined by eight other senators introduced a Joint Resolution of disapproval (S.J. Res. 4) yesterday that would essentially discard USDA's Final Rule regarding BSE and Classification of Minimal Risk Regions. Senators Thomas, R-Wy., Baucus, D-Mont., Salazar, D-Co., Johnson, D-S.D., Dorgan, D-N.D., Reid, D-N.V., Bingaman, D-N.M., and Domenici, R-N.M. co-sponsored the resolution.

Conrad's disapproval resolution has initiated an attempt to trigger the Congressional Review Act, which if approved by both chambers of Congress and not vetoed by the President would make the USDA rule null and void, and therefore close the possibility of live cattle under 30-months of age as well as beef derived from those animals from being imported from Canada. Further, USDA would not be allowed to repromulgate the rule in "substantially the same form."

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