R-CALF USA v. United States Department of Agriculture, et al.CASE SUMMARY
Federal agencies have exponentially expanded their authority by engaging in the common-place tactic of issuing informal interpretations, fact sheets, and other forms of “guidance,” the practical outcome of which is to surreptitiously force the regulated community to comply with a variety of “policy positions” that are not legally mandatory. The agencies, in other words, use these guidance documents to make law.The United States Department of Agriculture (“USDA” or “Department”) and the Animal and Plant Health Inspection Service (“APHIS”) have taken this “guidance-is-law” ploy to an entirely new level earlier this year, attempting to replace a properly-adopted regulation related to animal identification with an entirely new and costly approach, all of which was done under the auspices of a two-page “Factsheet.”The USDA and APHIS, however, cannot enforce animal identification requirements without formal rulemaking. They in fact undertook that process throughout 2011 and 2012, and in 2013 issued the “Traceability for Livestock Moving Interstate” regulation (78 Fed. Reg. 2040). That rule confirmed that cattle and bison producers could use a variety of identification techniques for their livestock, including brands, tattoos, eartags, group identification numbers, and backtags. That rule actually prohibited States and Tribes from requiring livestock producers to use what is known in the industry as “radio frequency identification” or “RFID.” Earlier this year, however, the USDA and APHIS reversed course, and issued a “Factsheet” entitled “Advancing Animal Disease Traceability: A Plan to Achieve Electronic Identification in Cattle and Bison.” That so-called Factsheet now mandates that those producers who seek to sell across state lines are required to tag their livestock with RFID eartags.Under the 2013 rule, our livestock producers have the right to market and sell their cattle and bison so long as they use one of the approved forms of identification – an identification program, by the way, that has worked extremely well for over 100 years. Under the new RFID-only program, our livestock producers will be prohibited from selling their cattle and bison interstate unless they adopt and implement an entirely new form of identification. In short, these agencies have gone from a rule that prohibits an RFID-only approach, to one that mandates RFID use. The RFID pronouncement actually nullifies the 2013 final rule, while imposing additional costs of $ 1-2 billion dollars on the industry.NCLA represents R-CALF USA (the country’s largest producer-only membership-based organization representing cattle producers on domestic and international trade and marketing issues), as well as cattle producers from Wyoming (Tracy and Donna Hunt) and South Dakota (Kenny and Roxy Fox), challenging the Agencies’ use of guidance to repeal the protections and certainty provided for in the 2013 final rule.This case is not about identification and traceability of livestock in order to protect our food supply. We already have that. It is about Agencies who believe that they are above the law.