USDA starts formal rulemaking process for RFID ear tags

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USDA’s Animal and Plant Health Inspection Service (APHIS), has backed off its July 5, 2020, Federal Register Notice that would have required the use of radio frequency identification (RFID) ear tags on all adult cattle and bison moved in interstate commerce by Jan. 1, 2023.

This means that the original notice will not be finalized and that all current APHIS-approved methods of cattle identification may be used as official identification until further notice.

In formal comments submitted in October,  Billings, MT-based cattlemen argued that APHIS’s mandatory RFID notice was unlawful and the only way the agency could change current law was to conduct a formal rulemaking process.  APHIS reviewed 944 public comments on the July 2020 notice and has opted to go forward with a mandatory RFID program by going through a formal rulemaking process.

Opposed to the technology is R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) — the largest producer-only lobbying and trade association representing U.S. cattle producers. It is a national, nonprofit organization dedicated to the profitability and viability of the U.S. cattle industry.

APHIS first tried to mandate the use of RFID ear tags in April 2019, with January 1, 2023, as the mandate’s start date.

R-CALF USA, through its attorney Harriet Hageman of the New Civil Liberties Alliance, filed a lawsuit alleging that such a mandate was unlawful. “Within weeks, the agency withdrew its mandate. It again tried to issue essentially the same mandate through its July 2020 notice,” R-CALF said. “Having apparently received substantial opposition to this latest approach, APHIS has now announced that it will comply with the rulemaking process for any future action related to RFID requirements.

The action means cattle producers will retain the flexibility to use either low-cost technology such as metal or plastic ear tags, higher-cost technology such as RFID ear tags, or brands, tattoos, group/lot identification, and backtags, all of which are authorized under current law when adult cattle and bison are moved interstate.

R-CALF USA CEO Bill Bullard said the announcement is good news for U.S. cattle producers because it means the impending threat of a costly RFID mandate is now removed.

“But we must not stop defending the rights of producers because it’s clear the agency fully intends to continue efforts to force this costly mandate upon America’s independent cattle producers,” said Bullard.

R-CALF USA filed an amended lawsuit following APHIS’ withdrawal of its original 2019 RFID mandate alleging the agency violated yet another law, the Federal Advisory Committee Act, by establishing and then using a committee of pro-RFID ear tag members, including ear tag manufacturing companies, to assist it in formulating its mandatory RFID strategy. That lawsuit is pending in Wyoming’s federal district court.

“We are pleased that APHIS is coming to the realization that it must follow the law when considering how best to provide for animal identification and traceability. Mandating RFID requirements through an illegal process doesn’t serve anyone in the livestock industry, least of all our cattle and bison producers,” said Hageman.

APHIS says RFID tags 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.

An official ear tag is defined as an identification tag approved by APHIS that bears an official identification number for individual animals. Under the current regulations, ear tags may be used as official identification, and both visual-only metal and plastic tags, as well as RFID tags, are current options.

The animal disease traceability (ADT) regulations for cattle apply only to sexually intact beef animals more than 18 months of age moving in interstate commerce, cattle used for exhibition, rodeo, and recreational events, and all dairy cattle. The regulations permit brands and tattoos as acceptable identification if the shipping and receiving states agree and group/lot identification when a group/lot identification number (GIN) may be used.

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.

It’s when a fast-moving cattle disease arrives in the country that APHIS says it would especially need the use of RFID technology.  Last year 8,600 APHIS employees working  in 27 foreign countries, 50 states, and four territories produced the following results:

  • Successfully eradicating Ralstonia solanacearum race 3, biovar 2—a disease that can cause significant harm to U.S. agriculture — from more than 650 U.S. commercial greenhouses in 44 states just 2 months after it was detected.
  • Declaring Southern California free of virulent Newcastle disease after a 2-year, $57-million effort with our state partners to protect poultry from this highly contagious and fatal bird disease.
  • Establishing confirmatory testing services for SARS-CoV-2, the virus that causes COVID-19, testing more than 430 animals, with 66 confirmed positive, and setting up further support at 37 National Animal Health Laboratory Network labs, including 22 with the capability to test human samples.
  • Continuing Animal Welfare Act oversight throughout the pandemic.  APHIS contacted 100 percent of regulated facilities—with more than 18,000 phone calls and emails between March and August alone—to review records, monitor compliance, and offer other remote support.
  • Distributing more than 8.2 million vaccine baits to combat raccoon rabies in 17 Eastern states and more than 1.1 million baits in Texas to prevent canine rabies from reemerging along the Mexican border.
  • Facilitated new export markets for a wide range of U.S.-origin products, such as pet food to China (worth up to $300 million per year); bovine meat-and-bone meal to Mexico (valued at $65 million); and live cattle to Uzbekistan (valued at $25 million) and Morocco (valued at $10 million);
  • Inspected and cleared 5 billion pounds of fresh fruits and vegetables—a 100 percent increase over last year—and 1.05 billion plants from 23 countries before they were shipped to the United States;
  • Helped 19,400 producers protect their livestock from predation, and in general, protected 900 million acres of U.S. farmland; and,
  • Performed more than 500 compliance inspections of authorized field trials involving organisms developed using genetic engineering, with more than 80 percent conducted virtually to maintain this essential function during the pandemic.

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