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President Trump Rightfully Orders Agencies to Be Transparent and Fair USDA Should Be the First To Comply

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By Harriet Hageman, New Civil Liberties Alliance

Despite the fact the Constitution and Administrative Procedure Act (APA) prohibit the practice, federal agencies often engage in the commonplace tactic of issuing informal interpretations, factsheets and other forms of “Guidance,” to force compliance with a slew of policy positions which are not supposed to be legally binding. 

The agencies, in other words, use purportedly binding guidance to make law. This practice usurps the power of Congress and evades the legal requirements of formal APA rulemaking. 

In issuing his Executive Orders on “Transparency and Fairness” and “Bringing Guidance out of the Darkness,” President Trump is doing something about these abuses and standing up for the constitutional rights of all citizens in the process. 

While “Reining in the Administrative State” has been a cornerstone of President Trump’s agenda, much work remains to be done, with agencies continuing to rely upon guidance to circumvent the law. 

Earlier this year, for example, the United States Department of Agriculture (USDA) attempted to replace a properly-adopted regulation for animal identification with an entirely new and expensive approach, with an estimated cost in the billions, all of which was done pursuant to a two-page guidance document inauspiciously referred to as a “Factsheet.”

USDA knows it cannot enforce animal identification requirements without going through formal rulemaking. The department, in fact, followed the appropriate process throughout 2011 and 2012, and in 2013 issued the “Traceability for Livestock Moving Interstate” regulation.

This rule approved the use of a variety of livestock identification techniques, including brands, tattoos, eartags, group identification numbers and backtags. The 2013 rule prohibits states and tribes from requiring livestock producers to use what is known in the industry as radio frequency identification (RFID). In 2019, however, USDA reversed course and issued a factsheet entitled Advancing Animal Disease Traceability: A Plan to Achieve Electronic Identification in Cattle and Bison. 

This so-called factsheet mandates that producers who sell across state lines tag their livestock with RFID eartags. 

Under the 2013 rule, producers have the right to sell their livestock interstate so long as they use an approved form of identification.

Under the new RFID-only guidance, our producers will be prohibited from selling their livestock interstate unless they implement an entirely new and costly form of identification.  USDA has thus replaced a rule prohibiting an RFID-only approach with “guidance” that purports to mandate it. 

Congress is constitutionally responsible for making law and agencies are tasked with carrying it out. Congress has not passed legislation requiring animal RFID.  

USDA has instead unilaterally changed the law through the use of guidance, issued without proper notice, with the long-term impact being to put many ranchers out of business. 

USDA’s approach is unlawful. Fortunately, there are many in the cattle industry who are fighting back. The New Civil Liberties Alliance (NCLA) has been retained to legally challenge USDA’s new guidance, with a complaint having recently been filed in federal court in Wyoming over the agency’s misuse of guidance to repeal the 2013 final rule.

NCLA’s lawsuit against USDA is important well beyond cattle producers. Which particular industry is damaged by “guidance” is irrelevant, as tactics designed to circumvent APA requirements have been used to great effect by many executive agencies. 

While livestock producers are the victims of today’s unfair and nontransparent agency action, everyone else is at risk tomorrow. 

Sadly, agency overreach and overregulation did not end with the last administration, although the situation has substantially improved. USDA’s recent actions provide a perfect example of why President Trump’s executive orders on transparency and fairness are not only timely, but critically important to ensuring agencies operate solely and securely within the confines of our constitutional framework. 

These executive orders show opponents of guidance have a powerful ally in President Trump, and we commend him on his response to the long history of agencies abusing “guidance” to expand their authority by imposing ever-increasing regulations on the unwitting public. Given that agencies have 120 days under the executive orders to publicly identify guidance they wish to keep, we are counting on USDA to either retract the RFID mandate immediately or exclude it from whatever list it publishes on its website four months hence.

            Harriet Hageman is  Senior Litigation Counsel with NCLA, which has submitted an anti-guidance rulemaking petition to more than 20 federal agencies this past year.

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