Biden Cancels Trump Opioid Plan

The Biden administration said that it is canceling a last-minute plan by the Trump administration to let more physicians prescribe an opioid-treatment drug, despite exhortations to keep it from lawmakers and physician groups. Vec discusses this change in policy from the new administration.

USDA Violated FACA

Later in the episode, Mark talks about USDA’s violation of the Federal Advisory Committee Act and why it matters for regulations of Radio Frequency Identification Devices (RFID) eartags.

The U.S. Department of Agriculture (USDA) and the Animal and Plant Health Inspection Service (APHIS) have violated the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA). In their attempt to unlawfully mandate RFID eartags on livestock destined for market, USDA and APHIS set up two advisory committees to assist their RFID efforts, the “Cattle Traceability Working Group” (CTWG) and the “Producer Traceability Council” (PTC).

An opening brief filed by the New Civil Liberties Alliance in the U.S. District Court for the District of Wyoming argues that USDA and its subagency, APHIS, failed to comply with FACA’s statutory requirements in establishing and using the two advisory committees to gather information necessary to implement RFID eartags.  

NCLA represents the Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and four ranchers: Tracy and Donna Hunt from Wyoming, and Kenny and Roxy Fox from South Dakota, who filed a lawsuit against these agency defendants challenging their illegal April 2019 “guidance” as violating the 2013 Traceability and Identification Rule by attempting to force cattle producers to use RFID eartags in lieu of all other forms of approved identification under the earlier rule.

NCLA’s brief criticizes the Defendants’ decision to establish and utilize “advisory committees” without complying with FACA’s procedural requirements, as well as their decision to exclude from participation anyone who opposed the RFID requirements. Defendants’ mandate, issued in violation of the 2013 Final Rule, was designed to prohibit cattle producers from using any animal identification options that up to now had been perfectly acceptable, including tattoos, backtags, permanent metal eartags, brands, and group/lot identification numbers.

Defendants have taken the position that they neither “established” nor “utilized” the CTWG and PTC advisory committees within the meaning of FACA. However, their Administrative Record and documents obtained through a FOIA request prove otherwise. Defendants have conceded that they did not follow FACA’s procedural requirements—mostly because they wrongly assumed that they should not have to. Again, however, their own documents demonstrate that FACA applies in this case: (1) the agency urged the formation of CTWG; (2) numerous APHIS employees actively participated in CTWG’s and PTC’s meetings and calls; (3) CTWG’s fixed membership included APHIS officials; (4) CTWG and PTC—and their various subgroups—met regularly and made a series of recommendations to APHIS regarding the implementation of the RFID technology.

NCLA is asking the court to recognize the CTWG and PTC as federal advisory committees set up by USDA. To penalize USDA for not following FACA’s public meeting and balanced membership requirements, NCLA is further asking the court to prohibit Defendants from using any of the work product or recommendations made by either CTWG or PTC.

Read more here: https://nclalegal.org/r-calf-usa-v-united-states-department-of-agriculture/

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