A Primer in Agency law and Federal Monetary Manipulation
by Doreen Hannes (firstname.lastname@example.org)
The new USDA "User Guide" for NAIS is an attempt by the USDA to deflect criticism and responsibility for the program to the State Departments of Agriculture and to State legislatures. The definition of gerrymandering is unfair manipulation in a political sense. The USDA does that with real finesse in the User Guide.
The most important thing to understand is the process by which agencies make law or "regulations". As of this writing, the USDA has not followed the procedure necessary for the User Guide to meet requirements of an official document with any real moderating effects on the previous documents.
The User's Guide was not entered into the Federal Register and the previous documents, the Draft Strategic Plan, Standards and Tech Supplement as well as Implementation Plan, have not been withdrawn from the Federal Register. Thus the USDA's opening statement, "The 2006 User Guide is the most current plan for NAIS and replaces all previously published program documents, including the 2005 Draft Strategic Plan and Draft Program Standards and the 2006 Implementation Strategies" is what we in the Midwest call a bald faced lie. Since people are generally kept in the dark about how Federal agency rules and regulations are made, here is an attempt to explain it in its most simplistic form.
First and foremost, the agency must have the authority to enact the rules they are proposing. Then they must enter their proposed rule into the Federal Register serving as public notice of their intent. Typically, there will be a period of time for the public to comment on any proposed rules, and the public's comments are available in the reading room in DC or electronically online. After the public comment period the agency must then enter notice of their final rulemaking regarding the regulation. Then the regulation they have made will be codified (put into the proper titles and chapters amending existent regulations where applicable) and entered into the body of law called the "Code of Federal Regulations", or CFR.
To date, the USDA has not followed this procedure on three documents they have released regarding NAIS. Oddly enough, the documents that haven't followed proper procedure are all the documents that supposedly moderate the National Animal Identification System into something slightly less than pure evil.
The first document that was designed to calm the concerns of the public is "The Guide for Small Scale and Non-Commercial Producers". This document was released in June and was sent to several thousand Missouri residents by Congresswoman JoAnn Emerson to assure them that the NAIS was actually nothing to be concerned about. However, Linda Campbell, the chair of the Goat Species Working Group told me personally that she believed the Guide for Small Scale and Non Commercial Producers was actually written by a PR firm. She was aware that I was both with a small paper and an opponent of the NAIS. The "Guide for Small Scale and Non Commercial Producers" also fails to allow people who choose not to participate in the NAIS to engage in established avenues of commerce. In other words, if you don't want to buy or sell any stock, the NAIS will remain voluntary.
The second document the USDA failed to enter into the Federal Register was a slightly amended version of the April '06 Implementation Strategies. In the amended version the USDA deleted one paragraph (headed as "Contingency Plan" in the original document) regarding following the rule making process, should they fail to achieve their benchmark participation goals, including 100% compliance. They also removed the term "meta data" in two sentences and supplanting it with ATPS (Animal Trace Processing System) in one of those sentences. The last change was removing the word February '07 and replacing it with Spring '07 in a timeline.
The User Guide is the third document to fail to make it's way into the Federal Register. Considering the statement in the document that this is to replace all previous documents and that this is the "comprehensive" document regarding NAIS, it is terrifically inadequate. The User Guide doesn't give info on technology specifics, reporting requirements, incentive particulars, FOIA exemption, liability issues, nor is there any impact analysis. There is an extremely understated cost estimate for the actual identification devices, but no cost estimate for program participation. It's akin to saying the diploma on a vet's office wall is the cost of an education in Veterinary Science. In laymen's terms, it is absolute bunk. There will more on the User Guide throughout the rest of this article.
The manner in which federal agencies get states to cooperate with their programs is predominately through funding. The funding is carried out through the appropriations bills of both state and federal governments. In the state of Missouri, more than half of the budget is comprised of federal monies for various and sundry programs. many other states are in similar or even worse positions than Missouri. Sticking with the NAIS and it's implementation, let's look at the mechanisms used to develop the system.
Each state and tribe as well as the territories of the United States Federal Government signed cooperative agreements with the Veterinary Services division of the USDA. These agreements are binding contracts. All of the criteria for a legal and binding contract are met within the cooperative agreements. There is a definitive overview of the purpose, roles and responsibilities of each party are clearly defined and there is an exchange of consideration in the form of federal funds making the state responsible for fulfilling their part of the contract in the specified amount of time the CA covers. There are numerous forms to fill out and lots of ancillary agreements contained in the cooperative agreements signed by the states in '05, 06, and the application for '07.
One aspect of the fraudulent practices being employed by not only the USDA, but virtually every Federally Funded program, is attested to by the required acceptance of terms outlined in two forms. The forms referenced as SF-424A and SF-424B must be agreed to in order to get the Federal Funding the states are so accustomed to receiving. These forms cause the applicant to agree to fulfill Executive Orders related to the Environmental Protection Agency and Clean Air and Water and Wild Rivers acts, which align agencies and states into co-enforcement agreements with no legislative oversight on behalf of elected officials. The Executive Orders are listed only numerically and not topically and people would actually have to chase down information to find out what they are really agreeing to do when they are ostensibly signing on for just one Federal program.
The Cooperative Agreement Announcement for '07 regarding NAIS is a tremendously convicting piece of work. Not only does it contain agreeance to SF-424A and B, it also shows beyond a shadow of a doubt the USDA's continual attempt at lying and deceiving the public regarding their intent with the NAIS program. Just one excerpt from the Cooperative Agreement Announcement for '07, puts the mantra of "voluntary at the federal level" replete in the User Guide, to rest.
On page 16 of the Cooperative Agreement Announcement for '07 regarding the goals and objectives the states are to achieve it states:
Provide a brief overview of the work to be performed and how the plan builds on the 2005 or 2006 cooperative agreement plan. Also, explain how this plan will support the timelines for full implementation of NAIS as outlined in the draft strategic plan. The User Guide is loaded with references to interstate commerce and induced participation in the program to continue to engage in normal agricultural business activities like buying and selling stock. It is already illegal to remove an official USDA identification device from an animal, so if you should buy a cow with the 15 digit NAIS animal identification number you will automatically be engaged in that program whether you "volunteer" or not. The individual selling the cow is required to report to whom the cow was sold and what date the sale took place. This will enroll you in premise and animal identification regardless of your desire, or lack of desire, to participate in the program. You can find this juicy little tidbit on page 38 of the printed version of the User Guide:
The User Guide is loaded with references to interstate commerce and induced participation in the program to continue to engage in normal agricultural business activities like buying and selling stock. It is already illegal to remove an official USDA identification device from an animal, so if you should buy a cow with the 15 digit NAIS animal identification number you will automatically be engaged in that program whether you "volunteer" or not. The individual selling the cow is required to report to whom the cow was sold and what date the sale took place. This will enroll you in premise and animal identification regardless of your desire, or lack of desire, to participate in the program. You can find this juicy little tidbit on page 38 of the printed version of the User Guide:
On the very next page is a wonderful example of the truly compulsory force NAIS will be:
It is abundantly clear that NAIS is being shoved upon a strongly opposed public via executive branch fiat and the manipulation of State governments through the use of Federal Funds. This methodology will help the USDA to shift the blame for the draconian program to the States and their agriculture departments or individual state legislatures.
USDA will provide funding for:
"The Integration of existing State systems with the SPRS or a CPRS. This "pulling" of data from existing databases that already contain premises related information seems to be a prudent and cost effective method in many cases. States must carefully consider whether this type of data integration to register livestock premises under NAIS would be interpreted as "voluntary" and if this would create any problems for premises registration in the long term."
Yet there is hope. As referenced several times in the original documents of the Draft Strategic Plan there will need to be state level enabling legislation to get the program to work. If the individual states will stand up and preclude participation in the NAIS from their state and allow people to be removed from the database of premise registration when they desire to be removed the system will fall on it's face.
Since the only real need for the system's existence is to fulfill World Trade Organization's Sanitary and Phytosanitary (SPS) agreements, it is entirely possible to allow those who wish to export the opportunity to participate in this type of program, otherwise known as QSA and Export Verification Services, and allow them to pay for the system and reap whatever "premiums" they believe they may earn through their participation. Those who have no desire to sell internationally would then have no need to participate in the program. This would require that the USDA give up their false "disease control" premise and allow people to decide for themselves whether or not they desire to participate in international trade. Of course, this would also require that multinational corporate agribusinesses actually contract with people who want to deal with them instead of using the government agencies and legislatures as their contract providers.
The States must individually stand for their private citizens and pass legislation that disables or destroys the NAIS. Our representatives must be educated on the program as well its effects on both our liberty and our livelihoods and held to their oaths by those who have put them in office. If we don't have the resolve to inform them of our objections and refusal to allow this to happen in our state or nation, then we don't deserve the freedoms our forefathers died to endow us with.