A civil rights group and the Wyoming ranchers it represents are celebrating the U.S. Department of Agriculture’s decision to walk back its new cattle-tagging regulations after the ranchers challenged the rules in court.
A guidance document, which has since been taken off the APHIS website, had given livestock producers in the U.S. until January 2023 to switch to a new method that uses radio frequencies to identify and track adult cattle and bison that cross state lines.The Animal and Plant Health Inspection Service, an agency within the USDA, released a factsheet in April explaining new rules for how certain cattle will need to be tagged.
After the New Civil Liberties Alliance filed a lawsuit on Oct. 4 alleging violations of the Administrative Procedure Act, the agency announced on Friday that it had changed its mind – a development the NCLA said it was pleased to announce.
“The agency attempted to use a guidance document as a way to nullify an existing regulation,” Harriet Hageman, senior litigation counsel for NCLA, told Courthouse News in an interview Wednesday.
Hageman said guidance documents can be published quickly and do not follow the often years-long procedure required by the APA to implement new regulations.
These documents not to be used to legally enforce rules on industries or the public, but the APHIS factsheet aimed to do just that, she said.
While the agency publicly withdrew its guidelines, drawing enthusiasm from skeptical livestock producers and advocates, Hageman said the legal dispute is far from over. The agency will still need to respond in court to the group’s claims that it violated rule-making procedures.
“These agencies need to follow the rule of law,” Hageman said Wednesday.
The APA requires agencies to follow a series of steps that allow for public input, analysis, discussion and revisitation of new rules before they can be formally established.
Because the scrapped guidelines contradicted 2013 regulations that had endured this lengthy and public process, Hageman told Courthouse News, the agency was breaking the rules.
Just how much the implementation of the guidelines would have cost producers and veterinarians was a question many were asking, she said.
If it had heeded the APA instead of issuing two-page fact sheet with no public input, said Hageman, the APHIS would have been able to answer questions related to the logistics and costs of the new requirements.
The factsheet was quietly removed from the website last week because “it is no longer representative of current agency policy,” the agency said in a statement.
NCLA represents cattle companies and individuals in the suit filed in Casper, Wyoming, federal court.
Traditional methods farmers and producers use to identify livestock include branding, metal ear tags, tattoos and number markings that are officially registered.
Instead of employing those methods, the new guidelines aimed to require farmers to attach official radio frequency devices to the ears of certain types of cattle or their numbers would not be recognized.
The new rules were meant to bolster the 2013 regulations, which had established national minimum identification and documentation requirements in order to track livestock that commute across state lines.
A major reason for the government’s registering and tracking of livestock stems from efforts to quell illnesses such as mad cow disease.
“Animal disease traceability helps animal health officials know where diseased and at-risk animals are, where they’ve been and when,” the APHIS said in the factsheet. It said radio frequency transmitters in place of the old identifiers can help officials act quickly during an outbreak.
The agency said the NCLA’s suit is not the only reason that the agency changed its mind about the guidelines.
Recent executive orders from President Donald Trump have “highlighted the need for transparency and communication on the issues set forth in the factsheet before placing any new requirements on American farmers and ranchers,” the agency said in its statement.
On Oct. 9, Trump signed two executive orders stating that agencies must accept public comment on major guidance documents they issue in the future and publish them on a searchable website.
Because they can impact industries and the public like formal regulations do, the White House declared that agencies need to follow a similar process of input and analysis before releasing new guidance documents.
NCLA says it has filed 21 anti-guidance petitions since July 2018 requesting that federal agencies “stop promulgating and enforcing guidance that purports to legally bind individual Americans and small businesses.”
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Originally published in the Courthouse News Service