NCLA continues to battle USDA’s RFID eartag mandate
Cheyenne attorney Harriet Hageman and her nonprofit New Civil Liberties Alliance (NCLA) continue battling the U.S. Department of Agriculture (USDA) and its sub-agency, Animal and Plant Health Inspection Service (APHIS), for unlawfully trying to force producers to use radio frequency identification (RFID) tags.
They claim USDA and APHIS used illegally formed committees and are delaying releases of requested materials while planning to continue the electronic eartag program.
In 2013, USDA’s Traceability for Livestock Moving Interstate final rule allowed cattle and bison producers to continue using traditional, flexible and low-cost identification methods such as brands, tattoos and metal ear tags. Under this rule, producers would not be required to use RFID tags.
RFID mandate
However, USDA and APHIS began pushing a mandate requiring any cattle crossing state lines to have RFID tags for animal disease traceability, according to the USDA factsheet. Ranchers would not be able to sell cattle to another state without “an entirely new form of identification,” the fact sheet stated.
“In short, these agencies have gone from a rule prohibiting an RFID-only approach, to one mandating RFID use,” NCLA said. “The RFID pronouncement actually nullifies the 2013 final rule, while imposing additional costs of $1 to $2 billion on the industry.”
NCLA believes the USDA and APHIS violated the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act, as well as their own regulations as set forth in the 2013 Final Rule.
“USDA’s unlawful RFID mandate is just the latest effort to try to prevent cattle producers from using tried-and-true animal identification methods,” said NCLA. “These methods, until now, had been perfectly acceptable.”
Lawsuit filed
In 2019, NCLA filed a lawsuit on behalf of Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF) in Wyoming’s U.S. District Court before Judge Nancy Freudenthal.
In November 2020, Hageman demanded completion of the USDA’s administrative record, seeking documents about how two separate committees formed and met. She argued the second was created illegally after some of the original committee’s members, who opposed RFID tags, were excluded. The second committee was made of pro-RFID officials, according to court documents.
“The ultimate question to be decided by this court is whether USDA ‘established’ or ‘utilized’ these committees,” Hageman said.
Judge Freudenthal determined the case would be judged solely by the administrative record, which Hageman is still completing.
In December, R-CALF demanded nine USDA documents from 2017 be added, including a Denver airport hotel conference, a number of USDA slide shows, an official program from a strategy forum and a white paper written afterward. In December, the judge ordered half of R-CALF’s requests be filled, denying the rest.
USDA removed the factsheet and asked for the case to be dismissed. Judge Freudenthal determined this was sufficient for dismissal, but allowed Hageman to continue arguing an amended procedural claim.
Amended claim
On Feb. 8, in reference to the Use of Radio Frequency Identification Tags as Official Identification in Cattle and Bison document published on July 6, 2020, Hageman wrote, “Although they withdrew the factsheet, USDA and APHIS have not abandoned their efforts to force livestock producers to use RFID technology.”
She continued, “In July 2020, for example, defendants published a non-rulemaking announcement in the Federal Register seeking comments on their proposal to only approve RFID tags as official eartags for use in interstate movement of cattle and bison, beginning in 2023.”
The administrative record shows in 2017 USDA and APHIS determined RFID technology should become mandatory for all cattle by Jan. 1, 2023.
According to the 2017 administrative record, USDA and APHIS determined they needed to develop a comprehensive plan to address ‘the multitude of very complex issues related to the implementation of a fully integrated electronic system’ and a ‘specialized industry-led task force with government participation should develop the plan.’
The goal is still to require all cattle producers use RFID eartag technology by Jan. 1, 2023, against the 2013 final rule, Hageman argued.
“Last year, for example, they requested public comment on a proposal to equate the term ‘official eartag’ with an RFID eartag,” said Hageman, making RFID tags mandatory, while prohibiting the use of metal eartags as allowed in the 2013 final rule.
Hageman said an injunction is “the only effective means of ensuring USDA and APHIS comply with FACA, and to send the message federal courts will not tolerate agencies resorting to subterfuge to avoid compliance with the statute.”
Delay tactics
Each time the court orders more documents, Hageman explained, USDA sends partial responses leading to more requests. R-CALF used the Freedom of Information Act (FIOA) to obtain relevant documents, Hageman stated in her Dec. 21 brief.
On Feb. 12, Hageman filed a new supplemental motion seeking more documents be added to the administrative record, pointing to what she called USDA and APHIS’ continued failure to disclose relevant documents in a timely fashion.
“In January, for example, government employees delinquently provided a fifth response to the March 23, 2020, FOIA request,” she wrote. “APHIS responded by releasing more than 100 pages of documents related to the agency’s plans to require the cattle industry to use RFID eartag technology by Jan. 1, 2023.”
“R-CALF has now determined several of the just-released documents are highly relevant to its pending claims against USDA under the Federal Advisory Committee Act,” Hageman shared. “To date, however, USDA made no effort to supplement its administrative record by providing these documents to the court, despite having possession of these documents since before NCLA and R-CALF filed their FACA claims.”
Joy Ufford is a corresponding writer for the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.
