Fighting In the Trenches
As discussed in Wise Traditions, Winter 2006 issue, the U.S. Department of Agriculture (USDA) issued new documents in November 2006 for the National Animal Identification System (NAIS). Despite the repeated reassurances that the program would be voluntary, the documents reveal that USDA is simply leaving the responsibility of implementing NAIS to the states, with the lure of federal dollars as an incentive. In some ways, this was nothing new. The USDA has been funding the states to implement NAIS for several years, after all. But by declaring that NAIS to be voluntary at the federal level, the USDA set the stage for a 50-state fight as state legislatures began their new year.
The results to date have been a patchwork of developments across the country. This article will provide updates on states where there have been significant developments as of February. The legislative and regulatory processes often take place slowly, but are interspersed by rapidly moving events. WAPF is sending out action alerts for individual states, and those wanting more information can also sign up for alerts from www.farmandranchfreedom.org or www.libertyark.net. For those without internet access, one option is to get one person to sign up for emails and be the start for a phone tree to alert everyone else when action is needed.
To date, ten states have introduced bills to stop or severely limit NAIS. Below is a short discussion of each bill. The grassroots activists and courageous legislators who made these bills a reality deserve a lot of credit! Simply getting such bills introduced marks a new phase in the fight against NAIS, one that was only a dream a short year ago. But it is a long road between introducing bills and getting them made into law: committee hearings, floor votes in both the House and Senate, and the possibility of a Governor’s veto stand between introduction of a bill and its passage. Two bills have already died in committee. The remaining ones, and any future ones, will all need a lot of public support if we are to succeed.
The substance of each bill differs and is based on the unique circumstances of each state, including the political realities. One provision that is shared by several is a “non-discrimination” clause, which merits special attention. In many states, dictates have forced farmers to sign up for NAIS if they want to participate in 4-H, sell at a local sales barn, and other services or activities related to livestock. Because of the control that agri-business has over agriculture in this country, both government-run programs and private programs may force farmers to participate in order to conduct their normal activities. Non-discrimination provisions ensure that anyone who chooses not to be part of the program will be able to buy feed, sell at auction, use slaughterhouses, go to shows and fairs, and participate in related activities without any pressure to sign up for NAIS.
What’s Happening in Other States
The majority of states continue in an undefined, unclear manner. Most (if not all) states are continuing with so-called voluntary programs, often being implemented with coercive means and federal funding. A few highlights are discussed below.
Federal Issues Remain
Even though the NAIS main activity now is at the state level, we cannot forget the federal level. Most obviously, the issue of federal funding for NAIS will need to be addressed in the next agriculture appropriations bill. Last year’s bill was never adopted, and the USDA is functioning under continuing resolutions. If and when a new bill is introduced, we will make another attempt to amend it to remove the NAIS funding. We are also monitoring the 2007 farm bill.
But in addition to rewarding states for implementing NAIS with federal funding, the USDA may threaten to hurt states that do not implement NAIS. We have seen some signs of what form this retaliation might take. The U.S. Animal Health Association (USAHA) is a trade organization made up of federal and state agency officials and industrial agriculture associations. In fact, the membership of the USAHA bears a strong resemblance to the membership of the National Institute for Animal Agriculture, the trade organization that developed the original plans for NAIS. In the fall, a committee of the USAHA recommended that USDA adopt an interim rule that would stop interstate transport of cattle from states that do not have a “a requirement that all breeding age cattle be officially identified by means of official tag or registration brand or tattoo at each change of ownership, other than movements direct to slaughter, or movements through one approved market and then direct to slaughter.” If such a rule is adopted, it would mean that even animals that never left their local area, much less the state, would have to be “officially identified” or else the entire state would face the economic consequences of restricted interstate trade. There is no valid health reason or cost-benefit basis for such a program, but it could certainly create incentives for states to implement at least a partial NAIS-type program. And if this is done by an “interim rule,” the agency would bypass the normal notice and comment period for rulemaking. At this time, we don’t know whether USDA will follow the USAHA’s recommendation.
Even though the issue of NAIS is not directly in front of Congress right now, don’t stop trying to educate your Congressman about NAIS—it will be, sooner or later!
We have learned a lot of lessons about NAIS in the last year. To truly stop the program, we will have to address all of the tentacles: the federal funding, the coercion and misinformation used to implement current voluntary programs, the misuse of existing programs as in Michigan, and the potential for abuses of even private programs. It is far too early to declare victory, but there is hope. In just a little over a year, the issue of NAIS has gone from one that is almost completely unknown to a subject that is hotly-debated in public forums and state legislatures across the country. We have made a difference, because individuals have stepped forward to work together and make their voices heard. Keep it up!
Debate within the Grassroots
The grassroots opposition to the NAIS is comprised of widely divergent people: organic and sustainable farmers, cattlemen, grass-based ranches, consumers, homesteaders, pleasure horse owners, constitutionalist and property rights advocates, and many more. Last year, the Liberty Ark Coalition formed to try to bring these disparate individuals and organizations together in the common cause to stop NAIS, and I am proud to be one of the steering committee members. You may have heard that the Liberty Ark Coalition leadership was attacked by an organization called Farm for Life, in an open letter posted on the internet. If you are interested in what the letter had to say, and how the Liberty Ark leadership responded to the allegations, you can read the entire letter and the Liberty Ark response at: http://www.libertyark.net/splinters.shtml. Disagreements are a healthy part of any grassroots movement, but they do not change the fundamental goal we all have in common: We want to stop NAIS.
Anti-NAIS Legislation by State
ARIZONA: Senator Karen Johnson introduced SB1428, which would bar participation in NAIS or any national program of premises registration. At the hearing on February 14, the bill was amended to bar only a mandatory program. It was approved by the committee by a vote of 6-1! This is the first anti-NAIS bill to make it out of committee. Senator Johnson will be introducing a “non-discrimination” amendment on the floor, to prevent coercive measures that would force people into the program.
INDIANA: SB 486 in Indiana stops the state from participating in NAIS or any component of it. It also limits private tracking programs to prevent agri-business from abusing their control of the market in order to force individuals into their systems, and stops government entities from discriminating against people based on their refusal to participate in a private system. Given that Indiana was the second state to implement mandatory premises registration, the bill is a particularly huge step for this state! The bill was scheduled for a hearing on February 19, as this issue went to press.
MASSACHUSETTS: Two related but somewhat differing bills were introduced in Massachusetts. House Docket 1324 stipulates that the Massachusetts Department of Agriculture shall not take any federal funds for NAIS in FY 2007, shall stop uploading premises registration data to the federal database, and shall arrange for people who have been registered without their consent to be removed from the database. Senate Docket (SD) 1472 includes these provisions and adds important additional protections. SD 1472 bars the Department from establishing or participating in any program of premises registration or livestock animal identification, except for specific programs (such as scrapie) as they exist now and any future ones that are specifically authorized by law. This allows the legislature to establish new programs if there is a true need, but prevents the agency from simply implementing NAIS under another name or disguised as an expansion of an existing program, as has already happened in Michigan. SD 1472 also includes a non-discrimination provision. The bills have been referred to committee.
MISSOURI: Three bills have been introduced. Both HB 422 and HB 478 are one-sentence statements stipulating that the agriculture department may not participate in NAIS without specific authorization from the legislature. They have both been referred to committee and hearings are underway. HB 747 is a more comprehensive bill that would prohibit any NAIS, and specifically addresses the role of private programs and current state animal disease programs. It also includes an anti-discrimination provision. Missouri anti-NAIS activists support all three bills, but are trying to promote HB 747 as the best option.
OKLAHOMA: HB 1842 initially provided an exemption for premises that sold less than $10,000 in agricultural products. A committee substitute has been filed that would absolutely bar any government NAIS program.
SOUTH DAKOTA: South Dakota already has legislation that authorizes the state vet to implement NAIS on a mandatory basis. A bill was introduced to limit the program to a voluntary program only. At the committee hearing, several legislators who had sponsored the bill changed their position and ultimately voted against it; the bill died in committee.
TENNESSEE: Four bills have been introduced to stop NAIS: HB-764, HB-977, HB-978, and one not-yet-numbered. These bills take a variety of approaches, based on legislation introduced in other states.
TEXAS: Texas HB 637 would amend the existing statute that authorized implementation of NAIS, removing the agency’s authority to implement a mandatory program. HB 637 also provides important protections for any voluntary program: (1) it includes a non-discrimination clause; (2) it requires full disclosure and informed consent before anyone can be signed up; and (3) it allows people to withdraw at any time and have their information deleted.
VIRGINIA: HB 1990 in Virginia initially consisted of just one sentence, barring the state agency from “participat[ing] in or provid[ing] any assistance to the establishment of the National Animal Identification System or any substantially similar program.” At a subcommittee hearing on January 23, the legislators agreed to amend the bill to bar only a mandatory program and to allow the agency to remain involved in the USDA discussions on the program. The amended bill did not make it out of committee, and is dead for this session.
WASHINGTON: Like the Indiana bill, Washington’s HB 1151 bill cuts off existing agreements with the USDA, stops the state from participating in NAIS or any component of it, limits private tracking programs, and prevents government entities from discriminating against people based on their refusal to participate in a private system.
Developments in Other States
KENTUCKY: Three weeks after USDA’s highly-publicized announcement that NAIS is “voluntary,” the Kentucky Department of Agriculture proposed regulations that would make the registration and animal identification portions of NAIS mandatory. In place of the 24-hour reporting called for in the federal NAIS plans, the proposed Kentucky regulations would require a certificate of veterinary inspection (CVI) “or appropriate permit ….for movement or exhibition of all animal(s),” with only limited exceptions based on the specific species. (Proposed regulation 302 KAR 20:020). The proposed regulations would also allow the State Veterinarian to enter any farm or “any other place where animals are handled” to inspect and test, without a warrant. The proposed regulations do not just apply to livestock, but cover all animals, including dogs and cats. The regulations were revised slightly, and then withdrawn, in response to public comment. But the department has stated its intention to issue new proposals in the future, so the issue is not dead.
MICHIGAN: As this issue goes to press, Michigan cattlemen are fighting a battle against the mandatory electronic tagging of their animals. Using the regulations for the tuberculosis program, the Michigan Department of Agriculture made a “policy change” about the type of identification that must be used. Rather than allowing cheap metal tags, the Department is now requiring RFID tags on every cow. And in order to buy the tag, the farmers must sign up for a NAIS premises registration number. Voila! NAIS premises registration and animal identification accomplished without a single new statute or regulation. The deadline for tagging cattle is March 1, 2007, and a coalition of cattlemen, horse owners, and consumers are asking the governor to halt the program so that legislation can be introduced to address it.
VERMONT: The Secretary of Agriculture has stated that the Department did not apply for the $81,000 in federal funds for which it was eligible, which is an excellent development. But the war is far from over. The Vermont Department of Agriculture is continuing to promote NAIS and register premises. (See http://www.vermontagriculture.com/fscp/animalHealth/prs/prs.html). A telephone conversation with Dr. Wood of the department provided a telling quote: “The only thing stopped was the proposed rule to make it mandatory. There is still a voluntary program.” Apparently, it is not enough to cut off the federal funding for a year or convince an agency to drop proposed regulations. With industry and state organizations supporting NAIS, the program still has traction with state agriculture departments.
The National Agricultural Statistics Survey
Many people have received a survey from the National Agricultural Statistical Services (NASS) branch of the USDA. With NAIS in the process of implementation, any request by the USDA for people’s information causes a lot of concern! And many people are angry about the methods used by the government to obtain their contact information, such as getting lists from breed associations or magazine subscription lists. Although we have all become aware in the last few years of the fact that these lists are available for sale—something that many of us don’t like in any context—it is particularly disturbing to have our government being involved in this sort of privacy invasion.
The following is not legal advice. It is provided for your information only. You should consult an attorney in your state if you have any legal questions.
STATUTE: The USDA is required by statute to conduct a census of agriculture every five years. It applies to anyone with a farm, defined as “any place that produced and sold, or normally would produce and sell, $1,000 or more of agricultural products during the census year.” (7 USC section 2204g and 71 Fed. Reg. 7004.)
PENALTIES: There are very limited penalties for not complying. A person who “refuses or willfully neglects to answer a question” faces fines of up to $100. A person “who willfully gives an answer that is false to a question” faces fines of up to $500. (7 USC section 2204g(d)).
USE: The statute states that the information gathered “may not be used for any purpose other than the statistical purposes for which the information is supplied.” (7 USC Section 2204g(f)(3).) If the USDA complies with the statute, and you decide to respond to the survey, your information should not be placed into NAIS.
MORE INFORMATION: The regulations governing the National Agricultural Statistics Service branch of the USDA can be found at: http://www.nass.usda.gov/About_Nass/Regulations_Guiding_NASS/index.asp.
This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly magazine of the Weston A. Price Foundation, Spring 2007.