USDA withdraws RFID Requirement

The United States Department of Agriculture has apparently reversed course on the issue of radio frequency identification (RFID) for cattle.

In April of 2019, APHIS posted a factsheet to provide producers with information about the Agency’s guidelines and goals related to Animal Disease Traceability.  The factsheet broke the news that USDA would no longer accept the metal bangs tag or other government-approved metal tags as an official form of identification for sexually intact adult cattle that are sold or moved interstate. USDA outlined the dates for its plan to require all of these cattle to bear an RFID tag by 2023.

But USDA has changed its mind, in part due to President Trump’s Executive Order calling for “transparency and communication ,” says an updated agency factsheet.

“Since the Factsheet was posted, APHIS has listened to the livestock industry’s feedback.  In light of these comments and current Executive Branch policy, APHIS believes that we should revisit those guidelines. APHIS has removed the Factsheet from its Web site, as it is no longer representative of current agency policy,” said USDA on its site on Oct. 25.

R-CALF USA, a Billings- based cattle organization, along with the New Civil Liberties Alliance and rancher plaintiffs Kenny and Roxie Fox of Belvidere, South Dakota and Tracy and Donna Hunt of Newcastle, Wyoming, filed a lawsuit Oct. 4, seeking an injunction to stop implementation of the mandatory RFID program, alleging that the new requirement was in opposition to USDA’s own policy that had previously allowed the use of a number of different kinds of identification including metal bangs tags

“The lawsuit further alleges that the USDA violated the Federal Advisory Committee Act (FACA) by relying exclusively upon a hand-picked group of individuals who have been advocating for the use of RFID, including industry officials and ear tag manufacturers who stand to earn windfall profits from the mandate. The USDA created this advocacy committee simply by winnowing out those U.S. cattle producers who oppose RFID. The defendants’ actions in that regard violate federal law, which requires balanced representation on advisory committees,” said R-CALF USA on Oct. 4.

According to Harriet Hageman, an attorney with the filing law firm, “This case is important well beyond the livestock industry. Under our Constitution, Congress is the legislative branch responsible for making the law. The executive branch, which encompasses USDA and APHIS, is tasked with carrying it out. Congress has not passed legislation requiring animal RFID, these agencies have. Of even greater concern is the fact that they did so through the back door and without following the law. Forcing livestock producers to adhere to an RFID program will have an enormous impact on their operations, with noncompliance resulting in the denial of access to interstate markets. The USDA and APHIS are seeking to force compliance through extralegal lawmaking. That practice violates our clients’ Constitutional rights. This situation is exactly why NCLA was formed-to stop federal agencies from violating the law by circumventing rulemaking.”

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R-CALF USA pointed out Oct. 23, 2019, that the USDA website no longer contained its document that introduced a mandate requiring the use of radio frequency identification (RFID) for all cattle that are currently required to bear an official metal tag. The group today (Oct. 25) alerted its members that USDA had essentially turned 180 degrees, with the statement that the April factsheet no longer represents current policy.

Following is the Oct. 25 statement, in full:

Last April, APHIS posted a factsheet to provide producers with information about the Agency’s guidelines and goals related to Animal Disease Traceability.  Since the Factsheet was posted, APHIS has listened to the livestock industry’s feedback.  In light of these comments and current Executive Branch policy, APHIS believes that we should revisit those guidelines. APHIS has removed the Factsheet from its Web site, as it is no longer representative of current agency policy.  Recent executive orders have highlighted the need for transparency and communication on the issues set forth in the Factsheet before placing any new requirements on American farmers and ranchers. See Executive Orders 13891 and 13892. Consistent with these orders, 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.  While the need to advance a robust joint Federal-State-Industry Animal Disease Traceability (ADT) capability remains an important USDA-APHIS objective, we will take the time to reconsider the path forward and then make a new proposal, with ample opportunity for all stakeholders to comment. 
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.
It is important to note that despite any future actions USDA-APHIS may take regarding official identification devices, the underlying ADT regulations 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.  Those regulations permit brands and tattoos as acceptable identification if the shipping and receiving States agree.  USDA’s goals to enhance Animal Disease Traceability (ADT) have not changed; our aim is to: 

• Encourage the use of electronic identification for animals that move interstate under the current ADT regulation; 
• Enhance electronic sharing of basic animal disease traceability data; 
• Enhance the ability to track animals from birth to slaughter; and 
• Increase the use of electronic health certificates