Deadline Looms for U.S. to Unwind WTO’s COOL Clock: R-CALF USA Offers a Solution
"R-CALF USA is so determined to preserve COOL that it is aggressively fighting in all three branches of the U.S. government to defend it."
Billings, MT – The World Trade Organization (WTO) has directed the United States to modify its country of origin labeling (COOL) law no later than May 23, 2013. Supported by multinational meatpackers and meatpacker associations such as the National Cattlemen’s Beef Association (NCBA), Canada and Mexico successfully convinced the WTO that COOL violates international trade rules.
"Unless the USDA (U.S. Department of Agriculture) has already drafted a comprehensive, proposed rule to address the criticisms leveled by the WTO against COOL, there is insufficient time remaining for the public to have any meaningful input in the rulemaking process," said Mike Schultz, Chair of the R-CALF USA COOL Committee and Director of Region VI.
In June, a three-judge appellant panel appointed by the WTO issued its final ruling in favor of Mexico and Canada. The WTO ruled that the U.S. COOL law discriminates against cattle from Canada and Mexico by creating an incentive in favor of processing domestic livestock and a disincentive against processing imported livestock.
One of the three deciding judges appointed by the WTO was a Mexican national.
"It is outrageous for the WTO to enlist a Mexican national to support Mexico’s and Canada’s efforts to undermine our COOL law that was democratically passed under our U.S. Constitution," said Schultz.
In September, Mexico and Canada filed a separate complaint with the WTO, this time complaining that the United States was being unreasonable in asking for 18 months for which to modify COOL to comply with the WTO’s June ruling.
The United States explained it would take at least 12 months to bring COOL into compliance with the WTO ruling through modifications to the implementing rules, or regulations, for COOL. If a new law was needed to change the COOL statute, the U.S. said it would take "substantially more time" than 18 months.
On November 22, however, the WTO directed the U.S. to implement the WTO’s ruling no later than May 23, 2013, regardless of whether the U.S. chooses to implement the ruling by regulation or by statute. Thus, the WTO has directed the U.S. to complete an agency rulemaking within six months of its decision, in half the time that U.S. law would provide.
"It is equally outrageous for the WTO to demand that our federal agencies short circuit the right of U.S. citizens to actively and meaningfully participate in agency rulemakings, which necessitates ample time for USDA to draft a proposed rule, provide adequate public notice, and provide sufficient time for the public to submit thoughtful comments," Schultz added.
Schultz explained that R-CALF USA is so determined to preserve COOL that it is aggressively fighting in all three branches of the U.S. government to defend it.
To defend the United States’ sovereign right to implement and enforce COOL so U.S. consumers can know where their food is produced, Schultz said his group has engaged the judicial branch of government.
"We joined in a lawsuit with the Made in the USA Foundation and other cattle and consumer groups that was filed in federal district court in September to challenge the WTO’s authority to undermine our domestic laws," he said.
Schultz said his group also is actively lobbying the legislative branch of government. "We’ve been encouraging members of Congress to resist any efforts by USDA, USTR (Office of the U.S. Trade Representative), multinational meatpackers or their associations like the NCBA to weaken our U.S. COOL law in any way."
Because the current battleground over COOL is in the executive branch of government, Schultz said his group has been focusing considerable resources towards the USTR and USDA agencies. During the U.S. appeal of the first adverse decision by the WTO, R-CALF USA submitted a comprehensive, 17-page memorandum to USTR and USDA that identified numerous flaws in the WTO’s adverse ruling and suggested many arguments USTR could use in defense of COOL.
"Many of the arguments suggested by R-CALF USA in its memorandum were included in the United States’ appeal brief," said Schultz.
"The challenge right now is to unwind the WTO COOL clock by taking some meaningful action prior to the WTO’s May 23, 2013 deadline," Schultz said. For that purpose, and in response to a request from USTR for suggestions, R-CALF USA submitted comprehensive suggestions to USTR and USDA on how the U.S. can proceed with a rulemaking that would address the WTO’s criticisms while actually strengthening COOL.
"The WTO complained that COOL does not always provide accurate information so we suggested that UDSA initiate a rulemaking to eliminate one of the worst inaccuracies in COOL – the loophole that allows exclusively U.S. beef to nevertheless bear an inaccurate label indicating it is a product of two or more countries," explained Schultz.
Another major WTO criticism is that record keeping requirements for distinguishing imported livestock from domestic livestock are too burdensome. "To address this problem we suggested that USDA adopt a ‘presumption of domestic origin’ methodology that will completely eliminate the need for any records, Schultz commented. Schultz explained that if U.S. Customs and Border Protection required all imported livestock to be permanently marked with a mark of origin, then the origin of every animal can be accurately determined without any records: Those with import markings would be ineligible for the USA COOL label but eligible for a label denoting whichever country the animal’s mark identifies. Animals with no import markings would then be presumed exclusively domestic and eligible for the USA label.
"We’re leaving no stone unturned in our quest to defend and protect COOL," Schultz said adding, "But, if the U.S. is going to keep its regulatory options open, USDA must act swiftly to propose rulemaking language that we hope will be similar to what we suggested. If it doesn’t, U.S. citizens will be deprived of their right to actively and meaningfully participate in the democratic rulemaking process," concluded Schultz.
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R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) is a national, nonprofit organization dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. For more information, visit www.r-calfusa.com or, call 406-252-2516.