Animal Identification:
An Overview
Background
An animal identification system traces the whereabouts and movement of certain animals. While government officials and private industry had been working on the issue prior to the discovery of bovine spongiform encephalopathy in late 2003, USDA announced that it would expedite its efforts in the wake of the discovery.
On April 27, 2004 then-Secretary Veneman announced a framework for the implementation of the system called the National Animal Identification System ("NAIS") that was developed with the collaboration of USDA, private industry, and state animal health officials and is largely based on earlier work done with the United States Animal Identification Plan. This plan encompassed state and federal programs that traced the movement of livestock involved in disease outbreaks such as brucellosis in cattle, bison, and swine, tuberculosis in cattle and cervids, scrapie in sheep and goats and pseudorabies in swine. When fully implemented, the NAIS program was meant to provide information on the whereabouts of animals from its original birthplace to its death at the slaughter plan, but did not include further tracing of the meat through the plant to the consumer. The ultimate goal of NAIS was to be able to trace all livestock and poultry within 48 hours of a certain event such as a disease outbreak.
However, in February of 2010, Vilsack announced that USDA was ending the NAIS program and beginning a "flexible yet coordinated approach that embraces the strengths and expertise of States, Tribal Nations, and producers." Specifics of this new approach are unknown, but USDA is working with agricultural, consumer and veterinary groups in order to outline program details. Regardless, Vilsack made it clear that the new animal identification matrix would only apply to animals moving interstate and would be owned, led, and administered by the States and Tribes, with federal support focused entirely on animal disease traceability. This leaves the state governments with a large amount of discretion in deciding what form animal identification will take in their state. Here are some examples of animal identification systems.
"NAIS-Type" Identification Programs
While the NAIS program was completely voluntary on the federal level some states have mandated some portions of it on the state level. These include mandatory premises identification in Wisconsin and Indiana and mandatory premises and cattle identification in Michigan. Of the remaining states, the majority have implemented sections of the NAIS program on a voluntary basis. In his press conference, Secretary Vilsack made it clear that those states where portions of the NAIS program were already in place could use it as a framework for their identification program, if that is the direction they wished to continue. As a result, it is important to know the specifics of the NAIS program and the legal concerns involved with its implementation.
In general, NAIS addressed the need for fundamental information in the system: identification of premises where animals may spend time (including farms, auction markets, and meatpacking plants), identification of the animals (either on an individual or lot basis, depending on species), and a record of the animals' movement.
The first part of the NAIS system is called "premises identification." The purpose of premises registration is to ensure that producers are notified quickly when a disease event might impact their area(s) or the species of animals they have. In order to take part in this, producers to register their premises-a location where livestock or poultry are housed or kept-and provide their contact information, including the name of the entity, contact person, address/city/state/zip, phone number, operation type, and species kept at the premises. A unique premises identification number, or PIN, is then assigned and contact information recorded for that location. While the information above is all that is required to participate in the federal NAIS program, the state or tribe responsible for assigning PINS may also ask for additional information. The owner of an applicable operation may register their premises without participating in the other two parts of the NAIS system.
The second step in the NAIS system is "animal identification." According to the USDA NAIS User Guide, "animal identification is a recommended option for animals that are moved from one premises to a location outside that operation where the risk of exposure to disease increases (e.g., auctions, feedlots, or fairs). In addition to being useful for protecting livestock and poultry and investigating diseases, animal identification will provide producers with an efficient, cost-effective tool for managing their animals." Animals can be identified either individually or by group. Individual animals are identified by assigning them a unique animal identification number (AIN) that stays with an animal throughout its lifetime. The AIN is a 15-digit number beginning with 840, the numeric code for the United States. AIN tags are available as visual tags, radio frequency identification (RFID) tags, and injectable transponders. The AIN is linked to the premises identification number (PIN) where the animal was kept when identification was first applied. When the manufacturer of the AIN tag distributes them, the specific tag numbers are correlated with the premises to which they are sent. This distribution data is held in USDA's animal identification number (AIN) management system.
The final component of the NAIS system is "animal tracing." According to USDA, "animal movements of interest include those that might pose a significant risk of disease transmission or, in the event of a disease detection, those that might have the greatest potential for spreading a disease." Further, "[w]hen linked with other information, animal tracing provides timely, accurate records that show where animals have been and what other animals have come into contact with them." Information on the movement of animals is provided to state and private sector databases, where it is maintained. These databases are owned, managed, and controlled by the private sector or the States, and will be requested, according to USDA, only when there is a risk to animal health.
Legal Concerns with NAIS-Type Identification Programs
Confidentiality
Confidentiality of the supplied information, or limiting the individuals with access to it, is a concern of many producers. There are two ways in which the information may potentially be released in a state that has implemented the NAIS system. The first is through that individual state's Freedom of Information Act ("FOIA"), and the second is through a court subpoena.
Each state and the federal government have some form of FIOA, or "sunshine law," to contend with. FOIA is a law that gives the public the right to access governmental agency records by requesting them. These agencies can either be state or federal, and each level is covered by the appropriate FOIA, state or federal. Each law defines the information that must be released in a slightly different way but, generally speaking, records maintained by agencies within the executive branch must be released. These include records that are either created or maintained by an agency and under agency control at the time the request is made. As a result, potential records affected could include all of the information that producers have given to the government in conformance with a NAIS-type system. However, FOIA laws on both the state and the federal level are written to include exemptions, or types of records that are not given out. While one exemption to the federal FOIA (7 U.S.C. §8791) would have prevented NAIS information from being released, that exemption only protects information held by federal agencies. Now that animal identification will be owned, led and administered by the individual states, rather than the federal government, the information that is protected varies from state to state. Some states have created exemptions for the information, while others have not. For a listing of and discussion about the states that have limited disclosure of animal identification information, please read the Center publication Varying State Approaches to Confidentiality with Premises and Animal Identification Systems. To read each state's statutory language itself, please see the Compilation of Animal Identification Statutes.
The second method through which information may potentially be released is through a court's subpoena power. Private parties in the course of litigation can request a subpoena from the judge, ordering the release of certain information relevant to a case. Information that is exempted under FOIA is not automatically immune from subpoena. Instead, it may be obtained through discovery if the party's need for information exceeds the government's need for confidentiality. As a result, the court has the responsibility of balancing the interests of the two parties and deciding whether the information should be released. No cases have considered whether NAIS information is able to be released through the use of a subpoena. The final concern in confidentiality and privacy exists in a situation where the information is held by a private party. While FOIA might not apply to animal tracing information because it is created and maintained by a private party, privacy issues that should be considered involve the private contract between the provider and maintainer of information, and how much those contracts allow or restrict the sharing of information.
Liability
According to USDA, NAIS "will not expose producers to unwarranted or additional liability." This is an accurate statement for both the original NAIS system and for any state level comparable program- producers have always been responsible for the animals they sell, and that will not change. However, the NAIS system helps identify livestock producers in the chain of custody for particular animals. This identification increases the accountability for individuals who until now have been anonymous. This makes it easier to determine who mismanaged the animal, which can lead to increased liability exposure for that mismanager. However, the degree to which the system increases exposure may be limited, given that it does not trace the meat through the processor to the consumer.
However, if liability can be imposed, it would more than likely be through one of three theories of liability- warranty theory, strict liability or negligence. Under the warranty theory, producers might be held responsible under an "implied warranty of merchantability," a law adopted in most state in their commercial code, which is a set of laws regulating sales and usually based on the Uniform Commercial Code. The implied warranty of merchantability states that a merchant who sells goods warrants that those goods are fit for the ordinary purposes for which they were sold. However, this might not be the most likely theory of liability, for two reasons. First, courts have been reluctant to consider livestock producers as "merchants." Since only merchants can give warranties, if the producers are not considered merchants, they cannot be held responsible under this theory. The second reason is that many states in which animal agriculture is a major part of the economy limit livestock producers' exposure under a warranty theory of liability. For more information on these state limitations to warranties, please see Center publication Approaching Liability with Animal Identification.
Under the theory of strict liability, an individual who has introduced a defective product that is unreasonably dangerous into the stream of commerce into the stream of commerce may be held liable. However, this may not be a likely way to hold producers responsible, as courts have been reluctant to consider animals to be "products."
The most likely theory under which liability would attach is negligence. Negligence is the failure to exercise reasonable care. Examples of negligence might include administering illegal drugs or ignoring withdrawal times. Negligence can lead to liability, because if the plaintiff can prove that the producer failed to use reasonable care and that the failure caused plaintiff's injury, the producer may be held responsible. Negligence can be reduced or even eliminated through the use and documentation of best management practices on the animals, since those best management practices are the practices that a reasonable person would practice.
Other Identification Programs
Secretary Vilsack also mentioned other possibilities, such as branding or metal ear-tags, that might be used to meet identification requirements. Branding has been used for thousands of years, but typically as a way of proving ownership, rather than as a method of animal identification. Many states, typically in the western part of the country, have branding laws for livestock. Metal ear-tags imprinted with nine characters, also called "brite tags," have been used to identify livestock that have been vaccinated as part of a disease prevention program, or those that have been tested and found to be free of certain diseases. These are just two more of the options open to the states, and they potentially pose their own challenges, both legal and practical. However, until a more definitive plan is outlined, it's difficult to determine what exactly the plan will be, how it will be implemented, and how the solutions to those challenges will be found.
Conclusion
The regulatory structure surrounding animal identification is just beginning to develop. Currently a new system is being developed, but at this time no one knows what that program will entail. APHIS hopes to publish a proposed rule by the winter of 2010 followed by a 90-day comment period. A final rule will be published eight to 10 months after the close of the comment period. Some requirements, such as animal ID and traceability performance standards, may be phased in over time, following publication of the final rule. However, no matter what system is put in place, the government's approach, on the state and federal level, to the precise data requirements and maintenance of information will certainly affect participants of the livestock industry. For more information related to animal identification, please visit the Country of Origin Labeling Reading Room and the Food Safety Reading Room.