New USDA Guide—Mandatory or Voluntary?
by Karin Bergener, Judith McGeary & Randy Givens

Previous versions of the NAIS plan, which were the result of years of work by both industry and the government, clearly state that NAIS will become mandatory after an initial voluntary period. The target date for 100% participation was set at January 2009. The new User Guide, with its repeated mantra that the program is voluntary, includes a tacit acknowledgement that the plan for a mandatory program was extremely unpopular.

Despite repeating 29 times that NAIS is voluntary at the federal level, the User Guide says on page 4, “Under our current authorities, USDA could make the NAIS mandatory, but we are choosing not to do so....” In other words, USDA can change NAIS to a mandatory program any time it wants. The same people who tried to make NAIS mandatory for several years now want us to trust that they have changed their minds and that NAIS is, and will remain, a voluntary program—unless they change their minds again.

USDA initially planned to implement NAIS as a centralized program at the national level. After grassroots protests, USDA changed its strategy to provide standards and guidance at the national level, with states writing their own laws and regulations to implement NAIS. USDA can thus claim NAIS is voluntary at the national level while simultaneously encouraging and funding mandatory programs at the state level. The User Guide states that the new plan does not change any elements of state plans for NAIS, which allows states to impose mandatory animal identification and premises registration programs. USDA continues to fund these mandatory state programs and has not stated any intention to cease doing so.

Indeed, USDA Secretary Mike Johanns has said that funding mandatory state programs does not conflict with a “voluntary” federal program. The funding offered the states for 2007 ranges from $80,000 (Alaska, Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, and Rhode Island) to $1,200,000 for Texas. These amounts are in addition to other special funding, such as the federal money supporting mandatory radio frequency identification (RFID) cattle tags in Michigan.

In addition to state programs that make NAIS explicitly mandatory, the User Guide recognizes that participation in NAIS can be coerced without new federal regulations. On page 8, the User Guide states: “For example, in order for producers to obtain official identification devices, they first need to register for a premises identification number. Accordingly, 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.” In other words, the states can force people to register into the federal NAIS database to obtain identification devices they must have under already existing programs, such as those for scrapie and tuberculosis.

The User Guide repeatedly claims that obtaining an animal identification number (AIN) is voluntary. However, if you buy a cow from someone who is participating in NAIS, it is another story. The cow is already marked with an AIN, and entered into a state or private database. Unless the registered owner of that cow want to remain the owner, the NAIS participating owner will be required to report the sale of the AIN marked cow within 24 hours. The same applies to identified horses, chickens, sheep, and so forth. Your information will be reported, as the buyer, to the database even if you haven’t “volunteered.”

The Guide further states on page 29: “Producers who purchase animals and bring them into their operation will maintain the official identification already on the animal.” So you could be dragged into NAIS in many ways, like it or not.

The only way we can protect ourselves against a mandatory NAIS is to get Congress to pass a law that states USDA may not implement or fund a mandatory NAIS, whether at the state or federal level. Federal funding of voluntary state programs, which creates pressure to expand those programs, should also be barred. The law must prohibit USDA and the states from using coercive measures, such as denial of services, to “encourage” participation in NAIS.

• What Are the Costs?
• Alleged Benefits

Karin Bergener is an attorney in Freedom, Ohio. Judith McGeary is an attorney in Austin, Texas. Randy Givens of Paige, Texas, is a retired Army colonel. All three are livestock owners and cofounders of Liberty Ark Coalition established to defeat NAIS. Their article appeared in the Winter 2007 issue of Rural Heritage.