[Russell Frye was the lead litigator for the lawsuit mentioned in this article.]

The Washington Post
May 11, 2004 Tuesday
Final Edition

SECTION: Financial; E01, THE REGULATORS Cindy Skrzycki

LENGTH: 1005 words

HEADLINE: Cattlemen Have Beef With USDA Signals on Canadian Imports

BYLINE: Cindy Skrzycki

BODY:

   Let's just say the regulators at the Department of Agriculture stepped in some cow dung.
   Last week, the Bush administration admitted that it did not follow regulatory procedure in deciding what Canadian beef
products can come into the country legally. This caused three problems.
   It called public attention to a highly contentious issue. The administration's effort to normalize trade relations in Canadian
beef may be sidetracked. And the final rule that the USDA currently is working on to expand beef imports from Canada
will be scrutinized even more closely by opponents in the wake of the infection called mad cow disease being discovered in
Canada and the United States.
   The issue turned out to be one that shed light on how regulators have used rulemaking -- or in this case, avoided
rulemaking -- to manage the political and food safety ramifications of mad cow disease, or bovine spongiform
encephalopathy (BSE), in this country.
   If it were not for the settlement that the USDA entered into last week with a group of western cattlemen, attorneys for
the government would have been in court in Billings, Mont., today, explaining how regulators relaxed restrictions on
Canadian imports without following rulemaking protocol, or making any public announcement.
   At issue was a memo that appeared on the Web site of the Animal and Plant Health Inspection Service on April 19,
along with a list of "low-risk Canadian products" that would be allowed into the country as long as "risk materials," such as
the spinal cords and brains, were removed. On that list were all kinds of cuts and parts of Canadian bovines, including
ground beef.
   By April 22,
R-CALF USA, which stands for Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of
America, were in court asking to have the imports shut off. They alleged violations of the Administrative Procedure Act,
which requires public notice and comment on regulatory changes, in seeking to review the decision.
   U.S. District Judge Richard F. Cebull, on April 26, slapped a temporary restraining order on the government, effectively
stopping any of the products on the list from coming into the country. He said the action the agency took had the force of a
final rule without the notice-andcomment the law requires.
   "It is troubling to the Court how USDA could believe it is appropriate procedure to authorize all imports of bovine meat
products from Canada, through the April 19 memorandum, at the very same time when USDA is in the middle of a
rulemaking to determine whether to take such a step," said the judge's opinion.
   That rulemaking is one the Animal and Plant Health Inspection Service at the USDA proposed last November to add
Canada to the list of countries that presented a low risk of introducing the disease into the United States. More than 3,000
organizations and individuals expressed their views before the comment period ended April 7. It was expected the final rule
would be issued soon, beginning normalization of trade in beef with Canada.
   Even industry lobbyists pushing for more imports from Canada were surprised and perplexed by the quiet Web site
posting. They assumed any liberalization would come through the rule nearing completion.
   "It seems to me someone within USDA wasn't paying enough attention to the Administrative Procedure Act," said Mark
Dopp, senior vice president of regulatory affairs and general counsel for the American Meat Institute, which represents
packers and meat processors, and favors more imports from Canada.
   In the settlement, the department agreed not to relax its existing import policy until it completed work on it final rule. It
originally told the court that regulators could make case-bycase exceptions to the ban, an argument that clearly did not fly.
   The USDA also continues to argue until the cows come home -- or across the border -- that the meat that led to the
court case was safe, as do members of the American Meat Institute and the National Beef Cattlemen's Association, which
includes beef processors as well as ranchers.
   "The settlement was based on the administrative part of it. It is not a food safety thing," said USDA spokeswoman Alisa
Harrison. "This is a win [for
R-CALF] on the Administrative Procedure Act. There were some steps we missed."
   The department also wants to dispel the idea that the April 19 memo was a quiet end run around the regulatory process.
   Harrison said the memo was posted after a technical group, working on eliminating differences between BSE rules in the
United States, Mexico and Canada, decided the imports were safe. She said upper level administrators, including
Agriculture Secretary Ann M. Veneman, did not review or approve the posting.
   The settlement doesn't resolve the fundamental disagreement between the department and some ranchers who are leery,
for safety and economic reasons, of more Canadian beef entering the country.
R-CALF claims that intense lobbying from
the Canadian government and packers that have slaughter and processing facilities in Canada -- Cargill and Tyson -- has
caused the erosion of the ban on beef that the USDA announced last May 20.
   The group also noticed, in preparing its court case, that the department had made other revisions to its import policy
even before April. For example, regulators first said on Aug. 8, 2003, that only boneless veal could come into the country.
That was revised a week later to include veal carcasses as well.
   "We will continue to challenge their rules if they persist and ignore existing science which suggests that the current
safeguards are necessary to prevent BSE in the United States," said William Bullard, chief executive officer of
R-CALF,
which has 8,700 members.
   The USDA also has heard from members of Congress with cattle constituencies.
   Sen. Tim Johnson (D-S.D.) wants Veneman to have the department's inspector general look into
R-CALF's allegations
that there were other imports of Canadian beef before the April memo. He also would like Congress to hold a hearing on
the issue.