Texas Farm Bureau Opposes Voluntary NAIS Bills
Keeps Spreading Myths as Justification

In almost every state where activists have gotten bills filed against a mandatory NAIS, the state Farm Bureau has opposed the bills.  Here in Texas, Representative Kleinschmidt and Senator Eltife have filed bills to limit NAIS to a voluntary, non-coercive program, and Texas Farm Bureau (TFB) is opposing them.  Unlike last session, this time TFB has publicized its supposed “reasons” against the bills to limit NAIS in Texas.  Their justifications are myths, not based on facts or law.

MYTH: SB 682 / HB 3322 would require a fee

FACT: The bill says that the agency may assess a fee on participants.  The agency can choose to make that fee zero.  And since the program would be voluntary, people could simply choose not to participate if the agency ever did set a fee.

Texas Farm Bureau’s Response: In an email, the Texas Farm Bureau lobbyist responded: "Please see section (a-1) which states a person may apply for the program by paying a fee.  I interpret this section [(a-1)] to say a person must pay a fee to voluntarily participate.  It is questionable that bill proponents say an agency would believe it is the will of the Legislature to set the required fee at zero, although a zero fee would be appreciated."

MORE FACTS: This Farm Bureau lobbyist was AT THE HEARING when Senator Eltife stated, on the record, that the agency could choose to charge a zero fee.  No Texas legislator has stated that the agency would be expected to impose a fee under SB 682. There is nothing in the record to indicate that the "will of the Legislature" is for the agency to impose a fee under this bill. 

Moreover, as Farm Bureau should be aware, an amended version of SB 682 is being drafted to remove the words in section (a-1) that supposedly created this concern, to make everything completely clear – a Fee is Not Required!

MYTH: SB 682 / HB 3322 prohibit TAHC from requiring livestock identification under other programs, such as scrapie and brucellosis.

FACT: SB 682 and HB 3322 prohibit the TAHC from mandating NAIS, which includes requiring NAIS-compliant livestock identification under current programs.  The agency can continue with its existing programs without any problem.  The bills do prevent the agency from using the existing programs as a back-door method for mandating NAIS -- which we have seen happen already in Michigan with its tuberculosis program.

Texas Farm Bureau’s Response:  In an email, a Texas Farm Bureau lobbyist stated: "Please see section (c), the commission may (add) 'permit' (strike) 'require' the use of official identification numbers  assigned as part of the animal identification program for animal disease  control.  I interpret this section to say the Commission may not require livestock identification under current programs."

MORE FACTS:  While everyone is entitled to their opinion, the Farm Bureau's interpretation is not consistent with the statutes governing the TAHC.  SB 682/ HB 3322 amend just one section of the Agriculture Code: section 161.056.  This section was adopted in 2005 under HB 1361 and deals only with the National Animal Identification System.  Amending this section does not affect the many other laws that govern disease control programs:

• Chapter 162 authorizes TAHC to adopt rules addressing bovine tuberculosis
• Chapter 163 authorizes TAHC to adopt rules addressing brucellosis
• Chapter 165 authorizes TAHC to adopt rules addressing swine diseases
• Section 161.041 authorizes TAHC to "act to eradicate or control any disease or agent of transmission for any disease that affects livestock. The commission may adopt any rules necessary to carry out the purposes of this subsection, including rules concerning testing, movement, inspection and treatment."
  • The TAHC's most recent regulation that mandated identification of certain cattle because of bovine trichomoniasis was adopted under this section, not under Section 161.056 and not under NAIS
• TAHC adopted regulations mandating animal identification for scrapie in 2002, years before the NAIS provision was adopted, presumably using its authority under 161.041.

TAHC’s existing disease control programs are all based on portions of the Agriculture Code that are not affected by SB 682/ HB 3322.   Farm Bureau is either unfamiliar with the extensive body of law governing animal disease control in this State, or choosing to interpret SB 682/ HB 3322 as if those laws don't exist.

Five other states -- Arizona, Kentucky, Missouri, Nebraska, and Utah -- have all adopted laws barring a mandatory NAIS.  None of them have run into any problems with their existing disease control programs.

And, again, as Farm Bureau should be aware, an amended version of the bill is being drafted, which will clarify that the amendments to section 161.056 do not interfere with TAHC’s authority to mandate livestock identification under its current, disease-specific programs.

MYTH:  The existing law limits TAHC's authority to a voluntary program until the USDA makes it mandatory.

FACT: The TAHC has never acknowledged any such limit on its power, and has already taken actions directly contradicting this claim.  In December 2005, the TAHC proposed making NAIS premises registration mandatory 18 months before the timeline set out in the USDA's draft guidance document.

In addition, since then, the USDA has explicitly stated that mandatory state NAIS programs are allowed, and has also explicitly approved of States using misleading and coercive methods to increase registrations.  Without SB 682 and HB 3322, Texans remain subject to the TAHC's discretion as to when and how it wishes to implement NAIS!

Texas Farm Bureau’s Response: In an email, a Farm Bureau lobbyist stated: "Please see section (a) of current law (which is not shown in the  bill language) the commission may develop and implement an animal  identification program that is consistent with the United States Department of  Agriculture's National Animal Identification System.  I interpret this [the current law] to say the TAHC only has the authority to be consistent with USDA - which at this time is voluntary.  I would also like to point out that the proposed bill, in section (j) allows TAHC to make the program mandatory in Texas if USDA make it mandatory. [sic]"

MORE FACTS: Note that Farm Bureau didn’t even attempt to address the facts about what TAHC and USDA have both done already.  Apparently, simply repeating their interpretation is supposed to be an answer, regardless of whether it is supported by the facts.

Unfortunately, a mandatory or coercive state program would be "consistent" with USDA's NAIS.  Even after announcing that NAIS was voluntary at the federal level, USDA has continued funding mandatory premises registration in Wisconsin and Indiana.  USDA has also funded programs in many other states that have used coercive tactics to force people into NAIS.  For example, using federal funding, Michigan is requiring all cattle to be tagged with NAIS-compliant RFID tags.  Tennessee denied disaster relief to farmers who weren’t registered.  Colorado kicked children out of the State Fair if their parents’ properties weren’t registered.  Idaho took people’ s information from the brand registry database and placed it in the federal NAIS database.  USDA’s documents, including its most recent Business Plan, encourage states to use these sorts of tactics to force people into NAIS. 

Is Texas Farm Bureau uninformed about the status of the federal NAIS program and what has happened in other states?  Or does TFB believe coercion is an acceptable way to implement NAIS?  Both of these alternatives are disturbing. 

When the TAHC proposed to make NAIS premises registration mandatory back in 2006, Texas Farm Bureau did not argue that the agency was limited to a voluntary program.  At that time, the USDA had issued a draft guidance document stating that it planned to mandate NAIS in January 2008.  No actual rule had been proposed or adopted, yet TAHC decided to propose mandatory regulations 18 months ahead of even that draft timeline.  And Farm Bureau supported the proposed mandatory regulations.

Yes, SB 682/ HB 3322 does include a provision that allows the TAHC to mandate NAIS if the USDA ever does adopt a final rule mandating the program.  This provision was included because of the Supremacy Clause and to avoid a conflict between state and federal law.  But it also provides a clear limit on the agency’s power: TAHC cannot mandate NAIS based on USDA’s guidance documents, memos, cooperative agreements, or the other methods that have been used to date.

Texas Farm Bureau’s stated reasons for opposing SB 682/ HB 3322 are completely unsupported by the facts or the law.  The organization’s membership policy states that it “supports a voluntary market driven program until such time as there is a federal mandate requiring the establishment of such a system” -- which is exactly what these bills do. 

Texas Farm Bureau’s History with NAIS

TFB support for NAIS is long-standing.  Before USDA had even released the Draft Plan and Program Standards for NAIS, Texas Farm Bureau supported HB 1361, the 2005 bill that gave the Texas Animal Health Commission (TAHC) authority to make NAIS mandatory here in Texas. 

In 2006, when the TAHC proposed regulations to make NAIS premises registration mandatory and impose fees on every person who owned even one chicken, did Texas Farm Bureau object to the proposed regulation?  Absolutely not!  In fact, Farm Bureau recommended that the agency spell out the penalties, which included up to $1,000/ day fines and criminal misdemeanor penalties.  (Comments submitted by Jon Johson, Associate Director, Commodities and Regulatory Activities, Texas Farm Bureau, Jan. 27, 2006.  The scanned copy is too large to upload to this site, but a copy is available upon request.)

After protests by its members, Texas Farm Bureau changed its policy on NAIS.  The membership handbook now states “We support the current law giving the TAHC the authority to establish a premise and animal identification system.  We support a voluntary market driven program until such time as there is a federal mandate requiring the establishment of such a system.”  (TFB Policy 118)  

While most TFB members probably focus on the second sentence, which clearly states support for a voluntary program, TFB’s position in the Texas Legislature is based on the first sentence – essentially taking the position that they oppose any change to the current law, and ignoring the reality that the current law is not limited to a voluntary program. 

TFB testified against bills to limit NAIS to a voluntary program in Texas in 2007 and now again in 2009.  In 2007, Texas Farm Bureau testified against HB 461, which would have removed the TAHC’s authority to mandate NAIS.  And just this March, Texas Farm Bureau’s lobbyist testified that the organization opposed SB 682, which would limit NAIS to a voluntary program only unless the federal government imposed a binding mandate.  In other words, Texas Farm Bureau opposed a bill that mirrored its membership policy statement!

American Farm Bureau’s Links to NAIS

The American Farm Bureau and its state organizations have been involved with developing and implementing NAIS for more than a decade.  You can read an excellent article on American Farm Bureau and NAIS at: http://www.libertyark.net/articles/bergener-020107.html 

Here are a  few highlights:   

• 1994 – American Farm Bureau participates in the National Livstock Identification Symposium, where participants discuss a mandatory electronic tagging and tracking system.  American Farm Bureau representative urges uniformity for the standards for all species. 
• 2006 – American Farm Bureau appoints a board member to the U.S Animal Identification Organization (USAIO), an entity that is self-proclaimed to “manage the industry databases” under NAIS.  USAIO has worked with companies such as ViaTrace and Mircosoft to launch the databases, and has also received grants from USDA to promote NAIS.
• 2007 – Kansas Farm Bureau’s subsidiary, Agriculture Solutions, expands animal identification and data management operations to four states. Since the USDA documents call for the NAIS animal identification and tracking databases to be privately run and managed, there is the potential for huge profits to be made from NAIS. 

Also in 2007, Senator Brown (D-OH) proposed a bill to require producers to carry liability insurance in case of recalls, creating extensive new insurance business connected to the tracking of food.  As farm insurance companies, American Farm Bureau and the state Farm Bureaus stand poised to take advantage of this kind of requirement.