Analysis of USDA’s April 6, 2006 Announcement

By Judith McGeary

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 Cooperative Agreement that was also released by USDA on April 6 includes the following Purpose statement:

The purpose of this CA [Cooperative 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.