Notice of Intent to Sue USDA & MDA

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Notice of Intent to Sue USDA & MDA

May 15, 2008: Attorneys for FTCLDF sent a Notice of Intent to Sue letter to both the United States Department of Agriculture (USDA) and the Michigan Department of Agriculture (MDA) over implementation of NAIS. Click here for the press release: Legal Defense Fund Moves to Stop Animal ID Program; Files Intent to Sue USDA and Michigan Dept. of Agriculture.

EXECUTIVE SUMMARY for NOTICE of INTENT LETTER to USDA and MDA
The National Animal Identification System (NAIS) is a nationwide program implemented by the United States Department of Agriculture (USDA) in conjunction with several States and industry. The alleged purposes of the program are three-fold: (1) assign a number to all livestock on all farms; (2) assign a premises number to all farms; and (3) track the movement of all animals on all farms. NAIS, however, is an ad hoc program that has not been subjected to the traditional rulemaking requirements of notice and comment and is not rationally related to its alleged purpose, i.e., controlling animal disease. States are also being coerced by USDA to implement NAIS under State programs in exchange for receiving federal funds. In addition, NAIS has not been subjected to either an Environmental Impact Statement or an Environmental Assessment. Moreover, the costs associated with NAIS have not been evaluated under the Regulatory Flexibility Act. Finally, NAIS infringes on the free exercise of religion.

Click below for the pdf version of the following documents:
Notice of Intent to Sue – Executive Summary

Notice of Intent to Sue

Notice of Intent to Sue – Table of Exhibits (also scroll down to see the table below)
Exhibit A	Exhibit B	Exhibit C	Exhibit D	Exhibit E
Exhibit F	Exhibit G	Exhibit H	Exhibit I	Exhibit J
Exhibit K	Exhibit L	Exhibit M	Exhibit N	Exhibit O
Exhibit P	Exhibit Q	Exhibit R	Exhibit S	Exhibit T
Exhibit U

Notice of Intent to Sue - Excerpts

Excerpts from the Notice of Intent (NOI) to Sue Letter to the
United States Department of Agriculture (USDA) and the
Michigan Department of Agriculture (MDA)

NAIS was developed by the United States Department of Agriculture (“USDA”), and is being implemented through its Animal and Plant Health Inspection Service (“APHIS”) and various state agencies, including but not limited to the Michigan Department of Agriculture (“MDA”). [NOI, p. 1]

Ironically, USDA claimed that NAIS is necessary to control disease in animals due to the ongoing success of existing animal disease control programs: “As diseases such as tuberculosis, brucellosis, and pseudorabies are eradicated from the United States, fewer animals are required to be officially identified under the regulations. As a result, our ability to trace diseased animals back to their herds of origin and to trace other potentially exposed animals forward is being compromised.” (see 69 Federal Register 64,644) [NOI, p. 2]

In promulgating its interim rule to facilitate the development on NAIS, the USDA concluded that “this interim rule has potential implications for small entities in the United States, both in terms of any costs they might incur to satisfy NAIS program requirements and in terms of the benefits associated with the program’s establishment,” and that “little information is available at this time about costs that may be incurred by producers.” Notwithstanding this admission that NAIS would have cost impacts, USDA refused to evaluate any such impacts based on the assumption that “participation in the NAIS is voluntary.” [ref. NOI, p. 3]

USDA is using the State of Michigan to implement NAIS in that State under the guise of eradicating TB, a disease which is not being caused by animals on farms, but rather, is being caused by wildlife in the State as well as by imported animals. [NOI, p. 5]

Even though implementation of NAIS is not required by any federal or state statute or regulation, the USDA held hostage Michigan’s attempt to have its areas declared TB free unless MDA agreed to implement NAIS on a mandatory basis for all cattle. [NOI, p. 8]

Another way in which NAIS will impact the environment is how it will drive small operations (which benefit the environment) out of business yet reward large operations (which burden the environment) by allowing them to proliferate. Specifically, NAIS creates incentives for confined animal feeding operations (CAFO’s) but not for pasture-based farms. Therefore, compliance with NAIS will be easier for large operations but more difficult for small operations. [NOI, p. 12]

Large swine and poultry CAFO operations will benefit from NAIS at the expense of small farmers since the USDA allows group identification numbers can be used for animals that “typically move through the production chain as a group of animals of the same species.” Small, pasture-based operations, which generally do not manage their animals in such artificial, isolated groups, will therefore be faced with having to individually tag and track each animal, a cost that USDA again failed to evaluate. [ref. NOI, p. 12]

In addition to the lack of scientific support, USDA has based NAIS on entirely unsupported assumptions about its feasibility and workability. Microchips are subject to multiple problems that make their effectiveness in a tracking system highly questionable. Microchips can be cloned or infected with computer viruses. The specific type of microchip designated by USDA for NAIS is reprogrammable making it useless against purposeful wrongdoing. [NOI, p. 21]

And experience in Australia with a similar program for cattle has proven that the databases are subject to extremely high error rates making them essentially useless in cases of true emergencies. [NOI, p. 22]

Notice of Intent to Sue – Table of Exhibits

Click below to download a copy of this Table of Exhibits

#	Date	Exhibit – Title / Description	Reference	Links
	5/14/08 25pp	NOI – Letter from David G. Cox (Lane Alton Horst) to Secretary Ed Schafer (USDA) and Director Don Koivisto (MDA), “Re: Notice of Intent to Sue – National Animal Identification System” (May 14, 2008)		Notice of Intent to Sue
A	4/25/05 22pp	Draft Strategic Plan – USDA-APHIS, National Animal Identification System (NAIS) – A State-Federal Industry Cooperative Effort, “Draft: Strategic Plan 2005 to 2009” (April 25, 2005)	p3 - F9	Exhibit A
B	4/25/05 34pp	Draft Program Standards – USDA-APHIS, National Animal Identification System (NAIS) – “Draft Program Standards”: A Discussion Document (April 25, 2005)	p3 – F9	Exhibit B
C	4/06 9pp	Strategies for the Implementation of NAIS – USDA-APHIS, National Animal Identification System “Strategies for the Implementation of NAIS” (April 2006)	p3 – F10	Exhibit C
D	11/06 66pp	User Guide – USDA, National Animal Identification System (NAIS), “A User Guide: and Additional Information Resources – Draft Version” (November 2006)	p3 – F11	Exhibit D
E	12/07 57pp	revised User Guide – USDA-APHIS, “National Animal Identification System (NAIS) – A User Guide: and Additional Information Resources”, Version 2.0 (December 2007)	p3 – F11	Exhibit E
F	11/22/06 28pp	Initial Announcement – USDA-APHIS-VS, Initial Announcement, “Cooperative Agreements for the Implementation of the National Animal Identification System” (November 22, 2006)	p3 – F12 p4 – F22	Exhibit F
G	12/12/07 77pp	Business Plan – USDA-APHIS, “Draft - A Business Plan to Advance Animal Disease Traceability Through the Harmonization of State, Federal, and Industry Programs and Convergence with the National Animal Identification System” (December 12, 2007)	p4 – F15	Exhibit G
H	11/1/04 1p	November 2004 Letter – MDA-Animal Industry Division, Letter from Michael S. VanderKick (DVM, TB Program Coordinator) to Michigan Cattle Producers (November 1, 2004)	p6 – F34	Exhibit H
I	11/06 1p	November 2006 Letter – MDA-Animal Industry Division, Letter from Steven L Halstead (DVM, MS, State Veterinarian and Division Director) to Michigan Cattle Producers (November 2006)	p7 – F42	Exhibit I
J	6/15/07 5pp	Article quoting Halstead – Paul W. Jackson, “TB-Free status delayed after state fails USDA review”, Michigan Farm News (June 15, 2007)	p8 – F45	Exhibit J
K	5/10/08 1p	Farmer member declaration - Robert R. Keyworth, “Declaration of Robert R. Keyworth” (notarized by Schutt on May 10, 2008)	p14 – F77	Exhibit K
L	5/6/08 1p	Farmer member declaration - Joe Golimbieski, “Declaration by Joe Golimbieski” (notarized by Szostak on May 6, 2008)	p14 – F77	Exhibit L
M	5/8/08 4pp	Veterinarian declaration - Dr. C. Glen Dupree, “Declaration of Dr. Glen Dupree” (signed May 8, 2008)	p15 – F79	Exhibit M
N	4/08 94pp	“CAFOs Uncovered” – Doug Gurian-Sherman, “CAFOs Uncovered: The Untold Costs of Confined Animal Feeding Operations”, Union of Concerned Scientists (April 2008) [PDF format available at www.ucsusa.org]	p15 – F80	Exhibit N
O	11/19/07 51pp	Implanted microchips – Katherine Albrecht (Ed.D.), “Microchip-Induced Tumors in Laboratory Rodents and Dogs: A Review of the Literature, 1990-2006”, CASPIAN Consumer Privacy (November 19, 2007) [available online at http://www.antichips.com/cancer]	p16 – F82	Exhibit O
P	5/9/08 1p	Veterinarian declaration – Dr. Melvin Tomas Massey, “Declaration of Dr. Melvin Massey, DVM” (signed May 9, 2008)	p16 – F82 p20 – F109	Exhibit P
Q	5/31/06	Microchip designated by USDA – Letter from Barbara Masin (Electronic Identification Devises, Ltd.) to Judith McGeary (Farm and Ranch Freedom Alliance), “Ref.: National standard for livestock identification” (May 31, 2006)	p21 – F116	Exhibit Q
R	5/07 53pp	USDA pilot projects – USDA, The National Animal Identification System (NAIS): Pilot Projects/Field Trials Summary, “2004 Initial Pilot Projects Final Report; 2005-07 Project Descriptions” (May 2007)	p22 – F117	Exhibit R
S	34pp	Experience in Australia – John Carter, “Australian Beef Association Response to NSW Agriculture. Regulatory Impact Statement and Draft Regulation on NLIS.” Australian Beef Association [NLIS = National Identification Livestock Scheme; a partial copy and other discussion available at http://www.cattlefacts.com.au/Issues_nlis.htm ]	p22 – F117	Exhibit S
T	7/15/06 16pp	Farm and Ranch Freedom Alliance, “Analysis of the National Animal Identification System” (July 15, 2006)	p22 – F119	Exhibit T
U	5/12/08 1p	Reverend Rosanne Wyant, “Declaration by Rev. Rosanne Wyant” (notarized by Moulter 5/12/08)	p23 – F127	Exhibit U