By Judith McGeary

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 wants 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 farmers and people who own animals for fun who are already taking a loss on their animals 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, many animal owners would choose not to comply anytime in the foreseeable future.

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.” Many states will be unable to get the full funding until they show that they have achieved “the measurable outcomes stated in the work plan.” This obviously creates a significant incentive for cash-strapped state agencies 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 led some states top adopt or propose mandatory programs. Wisconsin and Indiana have adopted mandatory premises registration. Texas and Vermont agencies proposed regulations to make premises registration mandatory, allowing them to drop only in the face of widespread opposition. 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. 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 voluntary?

States with facially voluntary programs have also used coercive or prejudicial methods to increase registration. 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. People in many states have been told that they must enroll in the program in order to use the local sales barn, or for their child to participate in 4-H, or to attend certain shows. Whether these conditions are based on actual regulations or not, individuals have been led to believe that they must sign up for NAIS. Is that voluntary?

At this point in time, the USDA is acting without any clear guidance from Congress. 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. For more information, go to www.farmandranchfreedom.org or call 1-866-687-6452.

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