Ranchers can continue to use currently approved identification tags for cattle while USDA examines whether to require Radio Frequency Identification (RFID) tags, the department said Tuesday.
USDA’s Animal and Plant Health Inspection Service said it decided not to approve a notice issued last year that would have made RFID “the official eartag for use in interstate movement of cattle,” APHIS said in a notice to stakeholders.
APHIS said it will use the rulemaking process for any future action and said it “continues to believe that RFID tags will provide the cattle industry with the best protection against the rapid spread of animal diseases and will therefore continue to encourage the use of RFID tags while rulemaking is pending.”
Requiring RFID has been controversial among some corners of the cattle industry. R-CALF USA sued the agency in 2019 over a fact sheet the group said mandated RFID use by 2023, but that lawsuit was ruled to be moot after APHIS withdrew the fact sheet.
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R-CALF is continuing to sue over the issue. APHIS “established and utilized two unlawful advisory committees to assist it in transitioning the U.S. cattle industry to exclusively use RFID eartags when moving adult cattle interstate, and to reduce cattle-producer opposition to the agency’s plan,” the group said in a news release last month that announced the filing of a brief in its court case.
If the FACA lawsuit succeeds, "USDA will not be able to use any of the recommendations or information obtained from the advisory committee in proposing a new RFID rule," said the New Civil Liberties Alliance, which is representing R-CALF.
“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," NCLA Senior Litigation Counsel Harriet Hageman said. "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.”
In comments on the July 2020 notice, R-CALF CEO Bill Bullard said APHIS was legally barred from implementing an RFID requirement without going through notice-and-comment rulemaking.
For its part, the National Cattlemen's Beef Association said in comments on the issue last fall that the organization "has long been supportive of traceability for animal health purposes and believes that the goal of any identification program should be to enable the cattle industry, state, and federal animal health officials to respond rapidly and effectively to animal health emergencies."
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This story has been updated to include reaction from NCLA.