Playing Tag: APHIS Withdraws Mandatory RFID Proposal
The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) has decided to use the rulemaking process for future action related to a July 2020 proposal to approve Radio Frequency Identification (RFID) tags as the only official means of identifying cattle moved across state lines. This means that the original notice will not be finalized, and that all current APHIS-approved methods of identification may be used as official identification until further notice.
Current regulations defining approved official identification have been in place since 2013 and state the following: “An official eartag is defined as an identification tag approved by APHIS that bears an official identification number for individual animals. Under the current regulations, eartags may be used as official identification, and both visual-only metal and plastic tags, as well as RFID tags are current options. The animal disease traceability (ADT) regulations for cattle apply only to sexually intact beef animals over 18 months of age moving in interstate commerce, cattle used for exhibition, rodeo and recreational events, and all dairy cattle. The regulations permit brands and tattoos as acceptable identification if the shipping and receiving States agree and group/lot identification when a group/lot identification number (GIN) may be used.”
Ranchers raised concerns over the July 2020 proposal stating that “all approved tags applied on or after January 1, 2023 would require an RFID component,” and “RFID tags would become the only legally recognized form of identification for interstate shipment of cattle by 2023.” The proposed changes also stated that beginning January 1, 2022, USDA would no longer approve vendors to use the official USDA shield in production of metal ear tags or other ear tags that do not have RFID components, such as currently used metal bangs tags.
“For the past two years the USDA and APHIS have tried to run roughshod over the rights of America’s cattle producers,” said Bill Bullard, CEO, R-CALF USA. “We’re cautiously hopeful this announcement signals an end to their regulatory overreach and the beginning of respecting both the law and the cattle producers these agencies are charged with supporting.”
The New Civil Liberties Alliance filed a lawsuit against the USDA on behalf of R-CALF USA and ranchers from Wyoming and South Dakota after the July 2020 proposal was put forth. In a March 23, 2021 press release, NCLA declared the APHIS announcement that they will go through a full rule making process before making any changes to the 2013 Final Rule governing animal identification and traceability a victory.
“For far too long and far too often, administrative agencies have been ‘legislating by guidance,’ thereby avoiding the strictures of the Administrators Procedure Act (APA), while imposing ever increasing mandates and requirements on the regulated public,” the NCLA press release stated. “That is exactly what USDA and APHIS tried to do in imposing an RFID mandate on cattle and bison producers via guidance. NCLA has been aggressive in challenging such extra-legal actions. The announcement today shows that NCLA is making progress in placing constitutional guardrails on executive branch agencies.”
Not everyone is celebrating the APHIS decision. South Dakota Cattlemen’s Association President Eric Jennings is concerned that a delay in mandatory RFID tags could cost time in tracking diseased cattle and create additional exposures to contagious diseases.
“It’s unfortunate the Biden Administration has chosen to step back efforts to generate more widespread use of technology that could provide timely livestock traceability,” he said. “The recent identification of a tuberculosis (TB) positive cattle herd in South Dakota is just one of many examples where the utilization of RFID tags would expedite traceability and save our industry time and money. Instead, under the current system, traceback of potentially infected animals may take weeks or months rather than days, meanwhile additional cattle could be exposed to TB.”
Jennings said that RFID tags would be more accurate, and faster and easier to trace than the current system.
“Electronic Identification (EID) is the wave of the future,” he said. “Currently, our state Animal Industry board uses bangs tag numbers, read and written down by individuals working at sale barns, to trace cattle back to their ranch of origin. Right now it’s a pretty inefficient system because we’re trying to trace animals’ movements with paper copies of health certificates. If we could plug a number into a computer we would be able to trace back much more quickly.”
RFID tags are currently available to cattle producers and are recognized by APHIS as one of several means of official identification. Jennings says that the USDA currently covers the cost of EID bangs tags for replacement heifers if producers choose to use them. Producers choosing to participate in Age and Source Verified (ASV) programs are required to use RFID tags prior to shipping their cattle, but in theory the additional cost of those tags—anywhere from $2.50 for low-frequency tags to $3.90 and up for high frequency tags—will be recouped in premium prices paid by buyers seeking out ASV cattle for their feeding programs.
Proponents of mandatory RFID tags state increased accuracy and speed of traceability as reasons to move forward with requiring them for interstate movement of cattle. APHIS stated that they continue to believe that RFID tags will provide the cattle industry with the best protection against the rapid spread of animal diseases and will encourage the use of RFID tags while rulemaking is pending.
Opponents say the current system is working, is accurate and fast, and cite concerns about whether the technology will function correctly, work at the speed of commerce in livestock sale barns, and whether tags will stay in place for the lifetime of a cow.
Kenny Fox, a Belvidere, South Dakota rancher who was one of the plaintiffs in the NCLA suit and who serves as the Animal Identification Chairman for both the South Dakota Stockgrowers Association and R-CALF USA says that metal tag retention is much better than the RFID tags, and that having multiple forms of acceptable identification provides better traceability than limiting the beef industry to a single form of ID.
“There are so many things with this technology that are not worked out yet,” he said. “I have talked to people who used the RFID bangs tags who said that most of them had fallen out in three years’ time. In the comments on the APHIS proposal, a family with five thousand cows said that after ten years only fourteen percent of the RFID tags were still in place. I don’t think anyone has invented plastic yet that lasts for a decade out in the elements, and I am not aware of any data out there on how well the technology and electrical components of RFID tags hold up over time, or how well they function in inclement weather. There are so many unanswered questions about it.”
Fox said that friends who use RFID tags on cattle enrolled in ASV programs suggest tagging them right before they get loaded on the truck.
“Cattle will find ways to lose tags, whether they are running in brushy country or in a feedlot setting with hay feeders or fenceline bunks,” he said. “The US Animal Health Association, made up of veterinarians, has proposed that metal tags be used with RFID tags on cattle destined for export. If one animal in the pen loses a tag, it condemns the whole lot. Making RFID tags mandatory is supposed to be about animal health traceback, but tag companies stand to make millions of dollars if RFID tags are required. We have the healthiest herd we’ve ever had in the United States, and we’ve done that with metal tags and brand inspections.”
Eric Jennings says that APHIS’s revoking the July 2020 proposal is essentially resetting the rule writing process.
“This is something we will keep talking about,” he said. “We urge the Biden Administration to move promptly in drafting rules to implement a more efficient livestock traceability system utilizing RFID technology.”
“We are pleased that USDA and APHIS have finally recognized that they cannot cut corners and ignore the APA when it comes to something as important as defining which type of identification will be considered ‘official’ for purposes of moving livestock interstate,” said Harriet Hageman, Senior Litigation Counsel with NCLA. “Our livestock producers are entitled to the certainty and protections afforded by the 2013 Final Rule, and any effort to change that Rule should be subjected to a robust legal review and analysis. Using unenforceable ‘guidance’ documents is no way to govern.”
Kenny Fox is pleased that APHIS withdrew the July 2020 proposal, but knows that the conversation will continue.
“I will always support voluntary use of RFID tags if people choose to use them,” he said. “I have friends who use them for in-herd tracking of production and performance testing. I am pleased that we can still use multiple forms of identification to track the movement of cattle. When one fails, another works.”
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