Is the National Animal Identification System Mandatory or Voluntary?
This article was originally published in the January 2007 issue of the Horse Gazette.
Numerous sources have reported that the National Animal Identification System, or NAIS, is voluntary. But is that really true?
On November 22, the U.S. Department of Agriculture (USDA) published a “User Guide” for NAIS. In it, USDA states that NAIS “is voluntary at the federal level.” Those are critical words – they mean that the USDA will not adopt regulations that make NAIS mandatory at the federal level. But what is the real impact of that announcement?
In the User Guide, the USDA notes that it still wants a “complete record of all locations, or premises, in the United States,” and identification of all animals that “enter commerce or commingle with animals at other premises.”  Bruce Knight, the new undersecretary for marketing and regulation, continues to say that USDA wants 100% participation by January 2009, which was the goal they announced in April of this year. 
Think about that for a minute: the USDA would like every single person who owns even one chicken, horse, cow, goat, sheep, or pig in the entire country to register their premises with the government, individually identify their animals, and report a long list of “events” to a government-accessible database. Think about all of the people who dislike government intrusion on principle. Think about all of the people who live in poverty or close to it, and raise a few animals to supplement their food supply or income. Think about all of the people who are already taking a loss on their horses and certainly don’t want any added expense. Does anyone really believe that the government can get 100% participation, or anything even remotely close to it, within just two years? If the government truly left it to people’s choice, without any form of coercion, it’s almost certain that many animal owners would choose not to comply within the next two years.
So what is the USDA’s strategy? USDA is using an approach that has proven very effective for a multitude of programs in the past: pay the states to do the work. Remember when the states were told that highway funds would be conditioned on adopting a 55 mph speed limit? The federal government frequently uses the power of the purse strings to get state and local agencies to do what the feds want.
The same day that USDA released the much-heralded “User Guide,” it also quietly released a document inviting the states and Indian tribes to file applications for their share of over $14 million in federal funds to implement the NAIS. This money comes with strings, of course. The document states that the funding agreements “will be administered as a performance-oriented, base-plus cooperative agreement. Applications must present well-defined measurable outcomes and total allocation of funding will be dependent upon achieving projected results with a mid-year assessment.”  More specifically, USDA will withhold part of the funds from certain states “based upon percent premises registration to date.”  Texas, which has registered less than 25% of its estimated premises, will be unable to get the full funding until it shows that it has achieved “the measurable outcomes stated in the work plan.”  So the Texas Animal Health Commission (TAHC) has ten percent of its $1.2 million allocation hanging in the balance, until it shows it can get enough people to sign up. This obviously creates a significant incentive for TAHC to make the program mandatory, or use coercive means to “encourage” people to sign up, in order to reach the USDA’s goals.
The lure of federal dollars has already created far-from-voluntary situations. Wisconsin and Indiana have adopted mandatory premises registration.  One year ago, the TAHC proposed mandatory regulations, and only allowed them to lapse due to the grassroots outcry. Even after the TAHC tabled the proposed regulations, the Texas Extension Service continued to tell people that the program was mandatory. I have had numerous people tell me that they signed up for premises registration only because they were told it was mandatory and there would be a fee if they didn’t do it now, or that their child could not participate in 4-H if they didn’t register, or that they couldn’t sell their animals at the local sales barn if they didn’t register. Is that truly voluntary?
And the non-voluntary methods of increasing participation in NAIS appear to be limited only by the agencies’ imaginations. For example, the Tennessee Department of Agriculture has made premises registration in NAIS a requirement for getting various forms of farm assistance. Some states, including New York, have “data mined” existing databases, and enrolled people in the NAIS database without the individuals’ knowledge or consent. USDA has specifically stated that it will fund this type of data mining.  Other states are requiring people to enroll in NAIS in order to comply with existing disease control programs; for example, Michigan has used its existing tuberculosis program to enroll cattle owners in the NAIS database without their consent and require that all cattle have an RFID tag by March 2007. Again, the USDA has specifically approved of this type of tactic, noting that “the success of the premises registration component would be achieved through the participation of producers in longstanding disease management programs and compliance with interstate movement regulations.”  Is that truly voluntary?
In Texas, the TAHC has the statutory authority to make NAIS mandatory whenever it wants to. The USDA claims the same authority at the federal level. Both agencies and industry groups such as the American Horse Council and Equine Species Working Group (ESWG) have tried to tell people not to worry about the program becoming mandatory, asking the public to blindly trust the government and industry. Yet the history of this program does not inspire trust.
In spring of 2005, the Executive Director of the TAHC testified before the Texas Legislature that the agency would not make the program mandatory until required to by the federal government. Yet before the end of that same year, the TAHC proposed regulations to make premises registration mandatory, moving ahead of the federal schedule. After protests from hundreds of Texans, the Commissioners voted to table the regulations to allow Texans to seek a solution from their elected officials. Yet, just ten days after that vote, the TAHC scheduled a special March meeting to push the regulations through. It was only the intervention of several legislators that stopped them.
The ESWG spent two years recommending that horse owners have to report to a government-accessible database every time they took their horse anywhere that it commingled with other horses or livestock – which means every show, every vet visit, every trip to the trainer’s or breeder’s, every trail ride. When asked why they suddenly changed position in 2006, the co-chair’s response was that they hadn’t realized what an impact the reporting requirements would have on horses. These are the people that now claim to be “advocates of owners’ rights”?
This “pay attention to what we say, not what we do” is rampant among the entities that support NAIS. For instance, the government and industry groups have repeatedly reassured the public that NAIS is “technology neutral.” Yet both the Cattle and Equine Species Working Groups recommended that cattle and horse owners use microchip or Radio Frequency Identification Device (RFID) technology as the standard form of identification, and even specified the exact type of RFID that should be used: the ISO 11784/85 RFID. And now the USDA’s announcement of funding provides that “allowable expenditures for support of animal movement infrastructure will only be associated with ISO 11784/11785 Compliant RFID technology.”  So TAHC can spend up to $360,000 on buying equipment to apply, read, and input data from ISO microchips.  But the TAHC can’t spend a dime of the federal funding on a system that would support low-tech identification and tracking or high-tech alternatives to the ISO microchips. How is this “technology neutral”? Can you trust these same government and industry groups to tell you the truth about what will happen in the future?
At this point in time, the TAHC and USDA are acting without any clear guidance from Congress or the Texas Legislature. They both claim authority to impose a mandatory program on us at any time. If we pay attention to what’s happening, rather than what we’re told, then it’s clear the combination of federal funds and federal goals has already created incentives for mandatory and coercive programs, and there’s no end in sight for that process. Until and unless the federal and state legislatures adopt statutes preventing mandatory and coercive programs, NAIS cannot be considered a truly voluntary program.
 Judith McGeary is an attorney in Austin, Texas, and the Executive Director of the Farm and Ranch Freedom Alliance. She has a B.S. in Biology from Stanford University and a J.D. from The University of Texas at Austin. She began her legal career by clerking for the U.S. Fifth Circuit Court of Appeals. Since then, her practice has focused on environmental law, commercial litigation, and appeals. She and her husband run a small farm with Quarter Horses, cattle, sheep, and poultry.
 USDA, National Animal Identification System (NAIS): A User Guide and Additional Information Resources (Draft Version, November 2006) (hereinafter “User Guide”) at p.5-6 (emphasis added).
 http://cbs13.com/topstories/local_story_326171804.html (expired link)
 USDA, Announcement of Cooperative Agreements for Implementation of the National Animal Identification System (NAIS) (Nov. 22, 2006) (hereinafter “Cooperative Agreement Announcement”) Initial Announcement of Cooperative Agreements for Implementation of NAIS, Nov. 22, 2006, p.1
 Cooperative Agreement Announcement at p.5.
 Cooperative Agreement Announcement at p.10.
 Wis. ATCP Rule 17.02; 345 IAC 1-2.5.
 Cooperative Agreement Announcement p.12.
 User Guide at p.8.
 Cooperative Agreement Announcement, p.8.
 The $360,000 figure is 30% of the $1.2 million total for which the TAHC is eligible. The Announcement provides that States like Texas can use up to 30% of their funds on Phases 2 and 3 of NAIS. Cooperative Agreement Announcement at p.6 & 27.