LINCOLN, Neb. (DTN) -- A federal appeals court this month ruled a district court got it right when in 2021 it dismissed a cattle industry lawsuit that challenged a Trump administration proposal to mandate the use of radio frequency identification of animals in interstate commerce.
The ruling handed down by the Court of Appeals for the 10th Circuit in Denver on May 20 comes at a time when the Biden administration is moving forward with a new RFID tag rule through USDA's Animal and Plant Health Inspection Service, or APHIS.
USDA sent a proposed rule for review to the White House's Office of Management and Budget on March 30. Such a review can take up to 90 days. The Biden administration proposal is labeled as not "economically significant" on the OMB's website.
On May 18, 2021, the U.S. District Court for the District of Wyoming dismissed a lawsuit filed by the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America, or R-CALF USA.
R-CALF alleged a 2019 RFID plan "unlawfully mandates" the technology in ear tags and other technology for livestock. R-CALF alleged USDA issued the RFID plan in April 2019 without following notice-and-comment procedures. The industry was concerned the mandate would be costly for producers who would be required to convert to RFID technology.
The lawsuit also alleged USDA violated the Federal Advisory Committee Act by relying only on a hand-picked group of members who have been advocating for the use of RFID. That included industry officials and ear tag manufacturers. R-CALF claimed the USDA action violated federal law that requires balanced representation on advisory committees.
The opinion handed down by the 10th Circuit, however, rejected the R-CALF allegations.
As part of its original lawsuit and the appeal, R-CALF alleged USDA worked with two private groups -- the Cattle Traceability Working Group, or CTWG, and the Producers Traceability Council, or PTC -- in establishing the 2019 rule, without following the Federal Advisory Committee Act.
"Because the administrative record contains no support for plaintiffs' claims that defendants 'established' or 'utilized' CTWG or PTC, those entities cannot be considered 'advisory committees' within the purview of FACA," the 10th Circuit said in its ruling.
"Consequently, we conclude that defendants were not, as asserted by plaintiffs, required to comply with FACA's procedural requirements in connection with their interactions with CTWG or PTC."
R-CALF CEO Bill Bullard told DTN his group is considering whether to appeal the 10th Circuit ruling to the Supreme Court, while keeping an eye on an upcoming USDA proposal.
"We are disappointed but not surprised that the appellate court would not rein in the USDA's action of establishing and utilizing hand-picked committees to assist it in crafting public policy outside the public's view," he said.
"This is an example of the court's unwillingness to stop government overreach. The USDA claims its new proposal is not economically significant. We disagree and met with the OMB to explain that the high-cost of a nationally mandated RFID system will most certainly exceed the $100 million threshold for an economically significant rulemaking."
Bullard said the group intends to "continue fighting" against USDA's "persistent efforts to saddle U.S. cattle producers with the most-costly of animal identification devices."
Federal law currently allows cattle producers to decide on the type of identification systems to use, he said, including "low-cost" metal ear tags.
In March 2021, legislation was signed into law in Wyoming to give ranchers flexibility to choose how to identify their cattle when shipped interstate, including but not limited to RFID ear tags.
A Trump administration plan would have phased out the use of other types of animal identification, including those methods specifically approved by a final rule issued in 2013.
The 2013 rule governs the traceability of livestock moving interstate. It allows branding, non-RFID ear tags, tattoos, group/lot identification numbers and back tags. The 2013 rule came about because of concerns about the spread of disease among livestock.
Read more on DTN:
"Proposal Draws Cattle Industry Interest," https://www.dtnpf.com/…
"RFID Ear Tag Federal Lawsuit Dismissed," https://www.dtnpf.com/…
"Cattle Group Challenges USDA on Tagging," https://www.dtnpf.com/…
Todd Neeley can be reached at todd.neeley@dtn.com
Follow him on Twitter @DTNeeley
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