USDA pulls mandatory RFID rule…for now
The U.S. Department of Agriculture announced Oct. 25, that the agency was no longer planning to enforce a policy requiring the use of radio-frequency identification (RFID) tags in the immediate future.
Belvidere, South Dakota rancher Kenny Fox said he believes USDA will continue to pursue a mandatory RFID policy in the days to come, but that USDA’s current plans have come to a halt.
In April of 2019, USDA published a “factsheet” outlining its timeline for the disallowance of metal bangs tags and other metal clip tags as “official” identification for sexually intact breeding cattle that travel interstate.
On October 4, R-CALF USA and four of its members filed a lawsuit against Agriculture Secretary Sonny Perdue and his Administrator for the Animal and Plant Health Inspection Service (APHIS), Kevin Shae, alleging that the two officials violated U.S. law by attempting to mandate the use of radio frequency identification (RFID) eartags beginning January, 2023.
On October 9, 2019, President Trump issued two executive orders relating to federal agencies. One order called on federal agencies to follow the rulemaking process before imposing burdens on Americans.
On October 25, 2019 citing those executive orders, USDA issued a statement saying the April factsheet was “no longer representative of current agency policy,” and that “APHIS has decided not to implement the requirements outlined in the April 2019 Factsheet regarding the type of identification devices that USDA-APHIS will regard as official eartags and the dates by which they must be applied to cattle.”
Harriet Hageman, an attorney with the New Civil Liberties Alliance, who filed the suit on behalf of R-CALF and the rancher plaintiffs, said even though she is pleased with USDA’s withdrawal of their April policy, the suit is currently going forward.
“Neither the USDA nor the Department of Justice has filed anything with the court, so I don’t know what they intend to do,” she said. A response to the suit is due 60 days after the Oct. 4, filing date, said Hageman. “They could answer the complaint, file a motion to dismiss, or file a motion for judgment on the pleadings.”
USDA APHIS spokesman Joelle Hayden said the silver metal National Uniform Eartagging System (NUES) eartags continue to be official identification tags and will be provided to accredited veterinarians as needed, and that USDA hopes to encourage the use of more RFID tags in the future.
“Producers and veterinarians may continue to purchase official RFID tags as they have been doing. APHIS is exploring funding options for official RFID tags,” she said.
Kenny Fox, one of R-CALF’s co-plaintiffs, says the issue isn’t dead. He believes the federal government will continue to press on for a mandatory RFID policy. “We’ve slowed them up for a while,” he says.
Miller, agrees, saying the mandatory RFID policy is “on hold,” and that he expects USDA is planning now to go through the official rulemaking process to implement a mandatory RFID program.
In its Oct. 25 announcement, USDA itself indicated that the agency intends to work toward mandatory RFID.
“As we undertake this reconsideration of whether or when to put new requirements in place, we will encourage the use of Radio Frequency Identification (RFID) devices through financial incentives that are also consistent with suggestions we have received from cow/calf producers and others. We continue to believe that RFID devices will provide the cattle industry with the best protection against the rapid spread of animal diseases, as well as meet the growing expectations of foreign and domestic buyers,” they said.
According to the lawsuit, USDA acted illegally in several ways.
“They attempted to use a two page fact sheet to nullify a properly adopted regulation that has been in place since 2013,” said Hageman.
“The agencies know that they must go through a formal rulemaking process in order to do something like this, with livestock producers and other interested parties participating through notice and comment. They can’t just simply publish the fact sheet on their website mandating RFID and then try to enforce it through penalties,” she said.
Hageman believes USDA also violated the Federal Advisory Committee Act by only including like-minded individuals on their advisory group. “When an agency forms an advisory committee to help with a particular policy issue, they must make sure that such committee represents a broad spectrum of view points to gather information from all stakeholders. There was lot of opposition to an RFID-only mandate in 2013 when USDA adopted the final rule on animal traceability, which is why that rule provides for the use of a variety of identification techniques, including RFID. Despite issuing that rule in 2013, the agencies continued working on the issue, all the while narrowing their advisory committee membership to only those folks that supported an RFID-only approach.”
Another illegal aspect of the mandate was that USDA did not publish the predicted cost of the program. “They are required to identify potential costs, which are estimated at 1.2 to 1.9 billion dollars for mandatory RFID,” she said.
Fox and Hageman both said that another significant concern of R-CALF USA members is the requirement, with a mandatory RFID program, that producers register their operations with the federal government. “If you look up the definition of premise, you get so many different answers,” said Fox, who worries about his family’s privacy as well as possible ties that would be made to deeded property.
Hageman said government officials in Washington, DC don’t realize how impractical a mandate like this could be for cattle producers out west, including someone like the other rancher plaintiff Tracy Hunt of Newcastle, Wyoming, whose cattle run on a 400,000 acre common allotment.
“They don’t understand the magnitude of what they are requiring cattle producers to do or how to do it, including in those situations where cattle owned by different producers intermingle, either intentionally or not. What are the paperwork requirements going to be? There are so many unanswered questions, which is why you don’t try to do something like this with a two page factsheet.”
The current requirement, which as been in place since 2013, allows livestock producers to use brands, eartags, group identification numbers, tattoos and backtags, “all of which have worked well for a long, long time,” according to Hageman.
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Outtagrass Cattle Co. cartoon by Jan Swan Wood for the June 19, 2021, edition of Tri-State Livestock News