Close on the heels of news a Montana judge had granted a request for preliminary injunction that will keep the Canada border closed to imports of live cattle, the Senate today rejected USDA's minimal risk rule with a 52-46 vote.

Under the USDA rule, the border was set to re-open to live cattle from Canada younger than 30 months of age on Monday, March 7. In early February, Agriculture Secretary Mike Johanns had delayed the resumption of trade of Canadian cattle older than 30 months of age.

Cattle stopped crossing the border into the US in May 2003, when Canada confirmed its first domestic case of bovine spongiform encephalopathy (BSE). Additional cases have been confirmed as recently as January of this year.

"I applaud the US Senate for passing Senate Joint Resolution 4 today," National Farmers Union President Dave Frederickson said in a statement today.

"During floor debate in the Senate, it was made clear that Canada has not been able to demonstrate containment of their BSE (bovine spongiform encephalopathy) outbreak, nor has Canada achieved compliance with its ruminant feed ban," he said.

"Further, many senators stated the fact that our largest beef export markets remain closed to US beef. Finally, a number of senators remarked on the inappropriateness of this rule specifically because mandatory country-of-origin labeling is not in place."

Senator Tom Harkin (D-IA) earlier today said he supported the resolution, and encouraged his colleagues to do the same. In explaining his reasons for doing so in a statement to the press, he noted:

"It is critical we restore beef and cattle trade with our trading partners, but we must do it right. Unfortunately, USDA's rule is flawed in several respects that need to be addressed. To our new Secretary of Agriculture's credit, he swiftly recognized at least one of these significant shortcomings, and delayed USDA's proposal to allow shipment of Canadian beef from cattle over 30 months of age into the US.

"USDA's ill-considered approach would have resulted in significant economic hardships for many US beef packers, particularly those that slaughter culled dairy cows as their primary business. Secretary Johanns recognized this, and I commend him for his quick response," Harkin said.

Responding to yesterday's news that Federal District Court Judge Richard Cebull had granted a request for a preliminary injunction to keep the border closed, which sought by R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America), Harkin today expressed concern that USDA's final minimal risk rule strays from the World Animal Health Organization's (OIE) scientific guidelines "in important respects."

"Specifically, USDA has crafted minimal risk criteria that are weaker than OIE standards specify," he said. "For instance, USDA's rule does not spell out what is required to have an effective ruminant-to-ruminant feed ban, an effective BSE surveillance plan, or require a compulsory reporting and investigation system.

"In fact, USDA seems to have purposefully dropped elements of the OIE guidelines that might have required the US to classify Canada as a moderate risk country for BSE instead of minimal risk," the Senator said.

"At an Agriculture Committee hearing on these issues, USDA attempted to explain these discrepancies by stating that there are redundancies among the several types of measures against BSE, and therefore if a country is weaker in one measure it might compensate in another measure. However, in the case of Canada, USDA has failed to set forth what measures Canada might be stronger in that warrant allowing slippage in others," Harkin said.

"Ultimately, we need to come to a common agreement with our beef and cattle trading partners regarding an acceptable framework for classifying a country's risk of BSE. If USDA designates a minimal risk region for trading that does not stand up to the scientific principles that are established by OIE, we will hinder those efforts to reopen markets," Harkin said.

Harkin alleged that USDA had turned a deaf ear to valid concerns about the rule, and noted "that is why we find ourselves here today.

"Our objective here today is not to shut down trade indefinitely, but rather to obtain the needed changes in the rule to facilitate the restoration of safe trade in cattle and beef products with countries that have experienced BSE. And that includes reopening now-closed markets for US beef exports," Harkin said.

Judge Cebull noted, in his opinion for the Montana case, that USDA's Animal and Plant Health Inspection Service (APHIS) appears to have applied "an arbitrary approach to a decision that subjects the entire US beef industry to potentially catastrophic damages and that presents a genuine risk of death for US consumers."

"The facts strongly suggest that the United States, established its goal of re-opening the border to the importation of live beef from Canada and thereafter attempted to work backwards to support and justify this goal," he wrote.

Cebull also noted, "The evidence demonstrates, in all probability, that the USDA's failure to conduct a proper risk assessment, and its failure to articulate any standards by which it has judged those potentially fatal outcomes to be acceptable, renders its action "arbitrary and capricious and unsupported by the record."

He also noted R-CALF USA was likely to prevail in its case against USDA seeking permanent injunction of the rule.

Among other points, he cited a lack of information indicating the USDA has fulfilled its statutory mandate to protect the health and welfare of the people of the United States, and evidence that indicates Canada has not conducted sufficient testing for BSE to accurately assess the rate of BSE infection there.

"Evidence strongly indicates that if the testing so far has been representative of the Canadian herd, a BSE prevalence greater than 5.5 cases per million head of cattle would put Canada on par with a number of European countries with a BSE problem," he wrote in the opinion.

"The testing also indicates that if Canada were to ship 1.7 million head of cattle a year to the US, as it did in 2002, prior to the discovery of BSE in Canada, it is a virtual certainty that Canadian cattle infected with BSE would be imported to the US.

"Moreover, the record demonstrates an import number of 2-3 million head of cattle from Canada during the remainder of 2005. This causes a potentially catastrophic risk of danger to the beef consumers in the US and is contrary to the direction of the Animal Health Protection Act, which directs the Secretary of the USDA to protect the health and welfare of the people of the United States."

"If this preliminary injunction is not granted," he wrote. "The introduction of BSE into the US will be irreversible and is sufficient to justify a finding of significant irreparable harm."