For the cause of traceability, radio frequency identification (RFID) ear tags will be required in American beef cattle, dairy cows, and bison by Jan. 1, 2023.

Unless, of course, a Montana-based cattle ranchers’ organization can persuade a federal judge in Wyoming to call a halt to the RFID mandate handed down by USDA’s Animal and Plant Health Inspection Service (APHIS). Traceability is increasingly in the food safety spotlight because of its crucial role in contamination and outbreak investigations.

The Billings, MT-based Ranchers Cattlemen Action Legal Fund United Stockgrowers of America on Oct. 4 sued USDA on the issue in U.S. District Court for Wyoming in Casper. The government has not yet even acknowledged the lawsuit exists.

The ranchers’ organization, usually just called R-CALF for short, wants U.S. District Judge Nancy D. Freudenthal to declare the government’s RFID plan for cattle as “arbitrary, capricious, an abuse of discretion and unlawful. . .” The cattle ranchers contend the USDA is acting beyond the scope of its legal authority.

Freudenthal joined the federal court in 2010 after an appointment by President Barack Obama. She served as the court’s chief judge from 2011 to 2018. Wyoming’s chief federal magistrate, Kelly H Rankin, is also on the RFID case.

R-CALF’s 48-page complaint is the work product of attorney Harriet M. Hageman, senior litigation counsel for Washington D.C.-based New Civil Liberties Alliance. She is a member of the Wyoming Bar Association.

In addition to the 20-year old R-CALF, the other plaintiffs in the case are Tracy and Donna Hunt, who run cow-calf operators in northeastern Wyoming outside of Newcastle, and South Dakota ranchers Kenny and Roxy Fox. Both couples are R-CALF members.

The Hunt ranch uses brands, metal ear tags, and tattoos to identify their cattle. The Fox ranch uses brands to identify and trace its cattle as the family-owned operation has done for generations.  

The RFID planned rolled out earlier this year mandates the use of RFID technology to identify cattle and bison that are moved across state lines for sale. APHIS adopted a 2013 final rule that appears to provide much more flexibility. 

 At that time, ear tags, tattoos, and metal ear tags — so long as acceptable to state brand boards and breed associations — were acceptable. That flexibility extended to livestock moved in interstate commerce so long as it was moved directly to a slaughter facility. 

Wyoming does not have any production-scale slaughter operations.

The 2013 rule’s “maximum flexibility” was intended to mesh with the states, Tribal governments, and producer practices. It’s “low cost” technology was also cited as an advantage.

The USDA contends that depending on the quantity purchased, tags can range in cost from $1.50 to $2.00 each. Price, however, is likely to be part of the legal dispute.

Technology experts say most companies selling RFID tags do not quote prices because there are too many factors to consider, such as the number ordered, amount of memory, and the tag’s packaging. A single active tag might fetch $25 but could today cost $100 or more depending on the packing, battery life, and sensors. They acknowledge RFID tag prices for livestock will come down dramatically once they are in greater demand.

No changes are yet proposed for identification tags for pigs, goats, sheep or other animals, but more mandates could emerge by late 2020.

Beef, dairy, or bison required to have an official identification after the deadline will need to have an Electronic ID — which can be called, EID, RFID, or Electronic tag — instead of the previous metal tags. Only the type of tag is changing, no other parts of the animal identification rule are changing. EID Tags have a 15-digit identifying number that can be read if no RFID scanner is available.

The USDA will also discontinue providing free metal tags and beginning Jan. 1, 2021, the department will no longer approve the production of metal ear tags.

Approved vendor tags will be available for purchase on a state-by-state basis as authorized by each state’s animal health official through Dec. 31, 2020.

Metal ear tags won’t be honored as official identification. RFID tags must be used as official identification for any newly tagged animals.

Animals without an RFID tag but that have a metal tag before Jan. 1, 2021, will not need an RFID tag until Jan 1, 2023. On that date all beef cattle, dairy cows, and bison will be required to have an official ID and will have to have an RFID tag. Other methods will no longer be accepted as a form of USDA official identification for any cattle after that deadline.

The ranchers’ complaint says USDA has no legal authority to require individual RFID ear tags on the cattle, dairy and bison herds.

Government attorneys have not yet responded to the lawsuit, which relies heavily on the federal Administrative Procedures Act for its claims.

Plaintiffs say they are “primarily concerned with the 2013 Final Rule as it relates to the identification and interstate movement and sale of cattle.” They say that the 2013 Final Rule even prohibits state and tribal governments from requiring RFID ear tags.

The R-CALF organization also contends the USDA rolled out the 2019 plan without a notice and comment process or publishing it in the Federal Register.

“The 2019 Plan requirements are in fact intended to repeal and replace critically important aspects of the 2013 Final Rule, including in relation to approved livestock identification methods as well as the type of livestock covered,” the ranchers’ complaint says.

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