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April 2009
Agriculture Secretary Vilsack Holds "Roundtable Discussion" on NAIS. On April 15, 2009, Agriculture Secretary Tom Vilsack convened a "Roundtable Discussion" on NAIS at USDA headquarters in Washington. Unfortunately, the vast majority of the invited participants were representatives of industrial agriculture—such as the National Cattlemen’s Beef Association, the American Farm Bureau, and the National Pork Producers. Still, Secretary Vilsack at least seems to be aware that NAIS is very controversial and very unpopular among smaller farmers. The USDA next plans to hold "listening sessions" throughout the country to gather feedback on NAIS.

October/November 2007
Senate Version of Farm Bill Attacks Open Government in order to Promote NAIS. The Chairman's mark of the Senate version of the Farm Bill, released on October 25, 2007, contained a gift to industrial agriculture in the form of a massive exemption to normal Freedom of Information Act disclosure for all information (even routine business names and addresses) related to the National Animal Identification System. The provision also contained a clearly unconstitutional prohibition of any "use" of such information, regardless of whether the information had been obtained from NAIS sources. Such unauthorized "use," even by the press or watchdog groups, would be punishable by hundreds of thousands of dollars in fines and by jail time.

Mary-Louise Zanoni brought the offending provisions to the attention of journalists’ organizations and open-government proponents. Not surprisingly, those groups immediately demanded that these provisions, set forth in Section 10305, be struck from the Farm Bill during the Senate’s floor debate. As of mid-November 2007, the controversy is ongoing, though it appears that numerous Senators have been made aware of the problem and intend to strike or greatly modify Section 10305.

August 2007
Government Accountability Office (GAO) Releases Report on NAIS. At the request of the Senate Committee on Agriculture, Nutrition, and Forestry, the GAO conducted a year-long study of the USDA’s implementation of the NAIS program. Unfortunately, the GAO report, released to the public in August 2007, fails to question the faulty reasoning that underlies NAIS. The GAO’s mission did not include examining the constitutional problems of NAIS (for example, whether the USDA’s ongoing compilation of a huge NAIS database of real property violates the Commerce Clause, and whether NAIS unjustly burdens minority religious groups in violation of the First Amendment’s free-exercise clause and the Religious Freedom Restoration Act). The GAO focused primarily on rather mundane problems—whether the USDA’s NAIS spending has produced results (it hasn’t), whether the USDA needs to make NAIS mandatory (contrary to the GAO’s view, it certainly shouldn’t), and the desirability of a planned cost-benefit analysis of NAIS.

As to the planned cost-benefit analysis, we already have ample indication that it cannot be objective. In the USDA press release (July 16, 2007) announcing the cost-benefit analysis, the study is consistently termed a "benefit-cost" analysis—a familiar public-relations linguistic trick to train the audience to expect that "benefits" will prevail over costs. USDA Undersecretary Bruce Knight, in announcing the cost-benefit study, stated that there are "tremendous benefits to NAIS"—hardly an indication that the USDA will be a neutral enforcer of the objectivity of the study. Finally, some of the principal investigators of the study have been recipients of very generous amounts of USDA NAIS grant money in the past—for example, Kansas State University. Such institutions have developed a dependency on NAIS funding and apparently plan to market their NAIS-related expertise as consulting services if the NAIS program continues to go forward. Thus, these entities, while they may try to be objective about the "benefits" of NAIS, will find it difficult to ignore their own stake in NAIS’s likely future financial benefits (i.e., more USDA grant money and a captive market of businesses needing NAIS consulting).

June/August 2007
Does the USDA Plan to Impose Mandatory Uses of NAIS in the Sheep/Goat Scrapie Program, Other Livestock Disease Programs? USDA Undersecretary Bruce Knight has announced that he expects the sheep industry to be the first group of livestock producers to achieve "48-hour traceability," i.e., to be fully NAIS compliant. (Lancaster Farming, June 9, 2007, A20.) How will this be accomplished? Not by a truly "voluntary" adoption of NAIS, but rather, by using the sheep/goat scrapie eradication program as a way to coerce unwary sheep/goat owners into NAIS. For example, the USDA well knows that under the Constitution’s Commerce Clause it can only regulate the movement of sheep/goats between (not within) states. Therefore the USDA has come up with a creative strategy for forcing the imposition of regulations on within-state movements that are technically beyond its jurisdiction. Namely, the USDA has threatened states with "noncompliant" federal status concerning sheep/goat movements between states, unless the states enact onerous in-state tracing regulations of their own. When sheep/goat owners sign up for such state programs they are automatically assigned a USDA NAIS premises ID number—even though the NAIS program is supposedly "voluntary," and even though the USDA more easily could assign to these farmers an existing type of scrapie flock/herd number that is separate from the NAIS system.

The USDA also announced in August 2007 that it would order 1.5 million NAIS-compliant RFID tags. According to the USDA, "these ear tags will be used to uniquely identify U.S. livestock that are part of current animal disease programs, in particular within geographic regions where bovine tuberculosis testing and the brucellosis calfhood vaccination program are most active." (CattleNetwork, August 24, 2007.) The actions and statements by the USDA strongly imply that the agency, despite its repeated claims that NAIS is "voluntary," will attempt to increase NAIS compliance by making some aspects of the program mandatory for some groups of livestock owners, namely, those participating in existing disease prevention programs—programs that have worked perfectly well for decades without any need for NAIS.

July 2007
House of Representatives' Farm Bill Deleted Provision for Tying NAIS to Country-of-Origin Labeling. During the House Agriculture Committee’s development of the House version of the 2007 Farm Bill, at one point a provision appeared in the draft bill that would have laid the groundwork for a mandatory NAIS. The provision would have tied mandatory NAIS to the implementation of Country-of-Origin-Labeling (COOL) by removing from the existing COOL statute a prohibition against using a mandatory NAIS to implement COOL. Little recognized was the fact that this NAIS-COOL tying provision had been adopted from a bill introduced in the present session of Congress by Rep. Steve King of Iowa, H.R. 2301. Rep. King’s bill would require a completely mandatory NAIS. One of the biggest proponents of mandatory NAIS is the pork production industry, which operates over 3,800 hog factory farms in King’s home state of Iowa. According to OpenSecrets.org, dominant global pork producer Smithfield is one of Rep. King’s largest campaign donors. The adoption of part of the King bill into the Farm Bill thus was an apparent attempt to prepare the way for subsequent mandatory NAIS legislation such as the entire King bill. Fortunately, after much insider negotiation and deal making over the COOL issue, the bill that came out of the process dropped the King-style NAIS-COOL tie-in. Thus, NAIS opponents have dodged a bullet for now. The process, however, reveals the relentlessness of the forces promoting NAIS and the complete vigilance that NAIS opponents have had to employ to slow down and stave off the controversial program.

June 2007
Mennonite Farmer Succeeds in Religious-Freedom Legal Challenge to Pennsylvania Premises ID. James Landis has raised ducks in Lebanon County, Pennsylvania for some 20 years. His ducks are sold through a dealer to live bird markets in New York City. For many years, the Commonwealth of Pennsylvania has required him to participate in an avian-influenza monitoring program. Mr. Landis has never had any health problems with his birds and his farm has never had any interruption of its ability to market birds. However, in 2007, the Pennsylvania Department of Agriculture (PDA), while claiming that participation in NAIS is "voluntary," demanded that farmers in existing state animal-health programs (such as avian-influenza monitoring) obtain NAIS premises ID numbers. Even though the PDA knew that no Pennsylvania law authorized its premises ID program, the agency began to pressure Mr. Landis to register for a NAIS premises ID. Ultimately the PDA told Mr. Landis that it would stop him from shipping his birds if he did not obtain a premises ID.

Mr. Landis is a Mennonite and like many others of his faith (and members of many other Christian and some non-Christian denominations as well), he has a religious objection to participation in any part of NAIS. Thus, when the PDA threatened to shut down his family farm, Mr. Landis sought legal assistance to preserve his farm and livelihood. Lawyer Leonard Brown of the Lancaster, Pennsylvania firm of Clymer & Musser volunteered to represent Mr. Landis without charge. Brown filed a complaint requesting an injunction to prevent the PDA from shutting down the Landis family farm. The PDA, apparently sensing that it had no proper legal basis to force Mr. Landis into a supposedly "voluntary" program, quickly settled the case and agreed to permit Mr. Landis to continue to operate without a NAIS premises ID.

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