USDA's latest moves - NAIS update

[Guest guest]

Greetings all,

Last Thursday, USDA issued a press release and several new documents

relating to the implementation of NAIS. The April 6th announcements

present a small victory. We have gained precious time, and no longer

face the imminent threat of regulations. Given that the USDA and

industry have spent years developing NAIS, any additional time for our

side is a welcome development!

Yet the USDA has not changed the true substance of NAIS. Rather, we

face a fight in every state to prevent burdensome and pointless

regulations, while still facing the threat of federal regulation if

USDA believes that there is insufficient progress. We must continue

our efforts, both individually and in cooperation with each other, if

we are to succeed against this decentralized, " divide and conquer "

strategy.

I am attaching a brief analysis that I have written of the new documents.

Regards,

Judith

--

Judith McGeary

Executive Director, FARFA

www.farmandranchfreedom.org

8308 Sassman Rd

Austin, TX 78747

jmcgeary@... Preliminary Analysis of USDA's April 6, 2006

(Summary, from below:

Overall, the April 6th announcements present a small victory, while

still showing how much work is in front of us. We have gained

precious time, and no longer face the imminent threat of regulations.

Yet the USDA has not changed the true substance of NAIS. Rather, we

face a fight in every state to prevent burdensome and pointless

regulations, while still facing the threat of federal regulation if

USDA believes that there is insufficient progress.)

Announcement

USDA's press conference on April 6 and the documents released the same

day provide some very good news. USDA will not propose regulations in

July 2006 for NAIS. USDA has also extended the timelines for the

program. These are excellent developments. They mean that we have

time: time to educate people about this program, time to work with our

state agencies, and time to place pressure on our elected officials.

The bad news is that it appears that USDA has simply decentralized

the system without significantly changing the requirements. Perhaps

USDA recognized that handling NAIS as a nationalized program in a

single database was technologically impossible. Perhaps USDA hopes to

avoid a direct challenge to NAIS by not adopting regulations that

could be challenged in court. Or perhaps USDA hopes that those who

are against NAIS will not be able to effectively oppose a system that

is scattered through 50 states and multiple private entities. While

the reasons are not clear, the result is: NAIS will be implemented by

the states and private entities, and USDA will have access to the

information through a metadata portal. This is no less burdensome or

intrusive on animal-owners than the original plan.

The documents released by USDA include " Strategies for the

Implementation of NAIS " ( " Strategies " ) and " Administration of Official

Identification Devices with the Animal Identification Number "

( " Administration " ). These documents have not been published in the

Federal Register, unlike the Draft Plan and Draft Strategic Standards

from 2005.

While the press release and Strategies document repeatedly discussed

how NAIS is a " voluntary plan, " the USDA has set specific benchmarks.

The Strategies states:

USDA will evaluate whether the participation levels are increasing at

rates that will achieve full participation by 2009. Based on that

analysis, USDA will determine if the market-driven incentives, along

with industry " buy-in " for improved animal disease programs, is

resulting in adequate participation and growth rates for NAIS to be

successful by the established target dates. If participation rates are

not adequate, the development of regulations through normal rulemaking

procedures will be considered to require participation in certain

aspects of the program.

(Strategies, p.3, emphasis added.) There is no definition for

" adequate participation " or " growth rates. " The benchmarks are set

as follows:

January 2007: 25% of premises registered

January 2008: 70% of premises registered

40% of animals registered

January 2009: 100% of premises registered

100% of " new " animals identified ( " New " is defined as animals born in

the last year)

60% of animals < 1 year of age have complete movement data

(Strategies, p.3) " These benchmarks are participation levels APHIS

believes are necessary for the industry, State, and Federal

partnership to successfully achieve the goals and objectives of NAIS. "

(Strategies, p.3.) Consistent with the goal of 100% participation,

the Administration document states: " To have a successful animal

disease management program, all producers and affected industry

segments will have to participate eventually. " (Administration, p.1,

emphasis added.)

In other words, the USDA contends that 100% of premises must be

registered and that all animals born after January 2008 will have to

be individually identified, to meet its goal for January 2009. And if

that goal is not met, we can expect there to be federal regulation.

Indeed, by setting the intermediate benchmarks, if USDA does not think

that there is adequate " growth rates, " it may issue proposed

regulations even before 2009. USDA still claims (incorrectly), that

it has statutory authority to implement a mandatory NAIS if it chooses

to. (See Transcript of Tele-News Conference, April 6, 2006;

" REPORTER: … If you wanted to make this program mandatory, is this

something you could do through the rulemaking process within USDA, or

would you actually need Congress to put out some new legislation?

SEC. JOHANNS: We would not. We can do that today. We would not need

new legislation. " )

One of the confusing things about these documents is that USDA appears

to have underestimated the number of premises and animals involved.

The Strategies states that USDA estimates that there are 2 million

premises and 40 million newborn animals annually. This leaves open

the slight possibility that, if USDA reached those numbers, it might

choose to ignore the fact that this would not mean 100% participation.

But the USDA has not bound itself to that limitation. Rather, the

Strategies defines " premises " in essentially the same way as the 2005

Plan: " [Premises that need to be registered by 2009] includes all

locations that manage and/or hold livestock and poultry. "

(Strategies, p.4, emphasis added.)

Moreover, even as it provides these low estimates, the Strategies

reiterates that USDA's goal is for 100% of premises and 100% of new

animals to be registered. (Strategies, p.4-5.) And the USDA

maintains its ability to mandate 100% compliance: " If the marketplace,

along with State and Federal identification programs, does not provide

adequate incentives for achieving complete participation, USDA may be

required to implement regulations. " (Strategies, p.3.) Even if USDA

were content with those 2 million registrations and 40 million animal

identifications, many small and medium size producers will have to be

included to reach those numbers, placing the heavy burdens of NAIS on

their shoulders.

USDA also appears to be trying to quiet the opposition from the horse

and poultry owners. The Strategies focuses on cattle in its specific

examples (such as estimates of the number of cattle killed each year)

and the Administration document identifies cattle as the priority for

the animal identification stage. But neither document defines

" animals. " Thus, we have to rely on the definitions provided in the

published plan from 2005, which would include all livestock, including

poultry and horses. Indeed, the ative Agreement that was also

released by USDA on April 6 includes the following Purpose statement:

The purpose of this CA [ative Agreement] is to facilitate the

deployment of an information technology infrastructure that will

enable animal health officials to access animal identification,

tracking, and movement data from data sets other than those maintained

by the Federal government as necessary to support animal disease

control and eradication programs of pests or diseases to protect all

livestock, i.e., all farm-raised animals, in the United States. This

agreement assists in implementing an interim/development phase to

enable private organizations and States with systems that meet minimum

requirements to participate in the development of the infrastructure

for the timely advancement of the National Animal Identification

System (NAIS). (emphasis added)

Similarly, USDA appears to be trying to deflect the criticism of the

technology aspects of NAIS. Thus, the Administration document

provides that non-RFID tags may be used. At the same time, USDA

clearly intends to move the entire program towards electronic

identification: " At this time, USDA views visual identification tags

as a starting point for the identification of cattle to ensure greater

participation among all producers. " (Administration, p.5, emphasis

added.) Once every premises is registered in state and private

databases, it would be easy to require the animal owners to move away

from this " starting point " to the radio tags and microchips that would

profit the technology industry.

There is no mention of abolishing the poultry or equine working

groups. Nor is there any change in the composition of the working

groups, so that they remain dominated by the large associations (who

are potentially candidates for operating the private databases at a

profit), large agricultural companies (who want NAIS to improve the

export market), and technology companies (whose self-interest is

obvious).

Overall, the April 6th announcements present a small victory, while

still showing how much work is in front of us. We have gained

precious time, and no longer face the imminent threat of regulations.

Yet the USDA has not changed the true substance of NAIS. Rather, we

face a fight in every state to prevent burdensome and pointless

regulations, while still facing the threat of federal regulation if

USDA believes that there is insufficient progress.

For more information, contact:

Judith McGeary

Executive Director

Farm and Ranch Freedom Alliance

8308 Sassman Rd

Austin, TX 78747

jmcgeary@...

www.farmandranchfreedom.org

Written: April 9, 2006