WYOMING – Several weeks ago, the ongoing lawsuit against the USDA’s attempt to replace a final rule for traditional livestock identification with electronic eartags scored “an important win” outside the courtroom.

In an apparent concession to the lawsuit or public comments – perhaps both – the USDA’s Animal and Plant Health Inspection Service announced in March it was reviewing its July 2020 notice to propose only radio-frequency identification eartags as “official” for domestic cattle and bison that cross state lines.

APHIS proposed to replace the 2013 final rule that allowed uses of traditional “low-cost” identifications such as brands, tattoos and plastic and metal tags and did not require new RFID tags. However, the sub-agency proposed its “guidance” become a “mandate” without following proper rulemaking procedures, according to many producers and commenters.

Members of the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America, or R-CALF USA, protested the APHIS “mandate” was not a legally created rule and could not replace the previous properly formed “Traceability for Livestock Moving Interstate” final rule.

In 2019, The New Civil Liberties Alliance had filed a lawsuit against APHIS and USDA against the agency’s April 2019 “factsheet” mandating RFID use. Senior counsel Harriet Hageman represented R-CALF, two Wyoming ranchers and two South Dakota ranchers in Wyoming’s U.S. District Court.

APHIS withdrew the factsheet.

After the 2020 Federal Register notice, Hageman quickly pounced it in court, raising questions about how the USDA and APHIS had used committees favorable to RFID use, ignoring members who did not favor requiring RFID tags.

Several times, she requested documents as part of the USDA’s administrative record, she argued, saying they showed violations of the Administrative Procedure Act and the Federal Advisory Committee Act.

USDA and APHIS made the March 23 announcement outside of the courtroom that it would not finalize the July 2020 “guidance” requiring RFID eartags.

“After reviewing 944 public comments on a July 2020 notice that proposed to approve ‘radio frequency identification (RFID) as the official eartag for use in interstate movement of cattle, the (USDA) has decided to use the rulemaking process for future action related to this proposal,” the APHIS statement said. “This means the final notice will not be finalized and that all current APHIS-approved methods of identification may be used as official identification until further notice.”

It went on to say that “APHIS continues to believe that RFID eartags 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.”

The sub-agency’s March 23 statement noted that APHIS-approved methods identify an individual animal for official identification to help trace animal diseases. This includes any cattle used for “exhibition, rodeo and recreational events.”

It did not provide a timeline for the rulemaking, only saying, “APHIS will continue to share news and information about efforts related to ADT and the use of RFID tags, and there will be an opportunity for public comment during the rulemaking process.”

Response from the NCLA was swift.

The same day, NCLA’s Judy Piño sent out a press release celebrating “Victory!”

The New Civil Liberties Alliance is celebrating an important win for America’s ranchers today after the U.S. Department of Agriculture (USDA) and its sub-agency, the Animal and Plant Health Inspection Service (APHIS) announced that they will go through a full rule-making process pursuant to the Administrative Procedure Act (APA) to make any changes to the 2013 Final Rule governing animal identification and traceability. They will thus abandon their prior attempt to replace the rule with guidance, which has been at the root of NCLA’s lawsuit against the agencies.

On April 6, Gov. Mark Gordon signed the Wyoming Legislature’s House Enrolled Act 0066, Livestock Identification Choice Act. As House Bill 229, all representatives but one approved the final version. In the Senate, all 30 state senators voted aye.

“For the purposes of animal disease traceability, Wyoming livestock owners may choose to identify animals using any methods set forth (by APHIS) as adopted on Jan. 9, 2013, as well as any additional methods that are later approved by the Wyoming Livestock Board as ‘official identification.’”

It notes that nothing in the bill “shall be construed to limit or amend the brucellosis surveillance or testing program administered by the state.”

The bill also prohibits release of any records to a federal agency except by request to the Wyoming Livestock Board and all such information must be guaranteed “confidential and … not subject to the federal Freedom of Information Act.”

However, producers will be penalized if they refuse to give the livestock board information necessary for a mandatory livestock identification program.

It took effect immediately.