Legal & Ethical Issues of Animal Tracking

Background & StatusLegal and Practical Concerns

CostConfidentialityCompetitionLiability

Ethical Considerations

RFID – Animal Ag Background & Status USDA initiated the implementation of the National

Animal Identification System (NAIS) in 2004. NAIS – A Cooperative State-Federal-Industry partnership

intended to: Standardize and expand animal identification programs

and practices to all livestock species and poultry Three components—premises identification, animal

identification, and animal tracking. Long-term goal of the NAIS is to provide animal health

officials with the capability to identify all livestock and premises that have had direct contact with a disease of concern within 48 hours after discovery.

RFID – Animal Ag NAIS is currently a voluntary program USDA has adopted a phased-in approach to

implementation. Although the draft strategic plan references mandatory

requirements in 2008 and beyond, to date no actions have been initiated by USDA to develop regulations to require participation in NAIS.

The NAIS is a national program intended to identify all agricultural animals and track them as they come into contact with, or are inter-mixed with, animals other than herd mates from their premises of origin.

RFID – Animal Ag Approximately $14.3 million has been available to state

and Tribal cooperators to begin implementation. More than 80,000 premises had been registered

as of early 2006; over 350,000 premises registered by Feb 2007.

Currently, animal health officials conduct disease trace outs with systems already in place:

records related to program diseases, on-farm recordkeeping, required interstate movement certificates and breed registries.

Epidemiologic investigations can take days to weeks to complete - records often kept on paper or not standardized across state lines.

RFID – Animal Ag Currently, all states and many Tribes have approved

premises registration systems; APHIS says all 50 states have projects in drafting/implementation stages.

Highest % of registration: Wisconsin (108.2%); Lowest % of registration: Connecticut (0.7%).

Questions:Participation rates in current registration of premises focus

Why are the high % high? Why are the low % low?

Why are we not at 100% across all states?

RFID – Animal Ag May stem from adoption of the program:

Pre-adoption of NAIS, partnership of 100+ animal and livestock professionals from 70 associations, organizations, and government developed the USAIP.

Who was included on the partnership discussions? USAIP plan identified framework & defined data standards for

implementing/maintaining phased-in animal id system USAIP was not an exact blueprint for the current NAIS.

USDA indicated it will continue to seek input from industry and other interested parties throughout the design and implementation of the NAIS (species groups still in place)

Questions: Who was represented then?

Who is represented now? Balance & adequate representation from all stakeholders?

RFID – Animal Ag NAIS v. COOL NAIS is not being implemented as a result of the COOL

initiative. COOL = Country of Origin Labeling

NAIS intent: track animal disease to its source and other potentially exposed premises within a 48-hour period after detection (disease focused)

COOL intent: identify for commercial marketplace what agricultural products (raw and processed) originate from US (market focused)

Questions: Are the differences in the two programs real?

Are the differences identified? Many who advocate COOL are opposed to NAIS; why?

RFID – Animal Ag Cost:

Private sector and government will share cost of necessary implementation elements (stated expectation)

State's and Tribe's animal health authority (e.g., State veterinarian) responsible for administering and maintaining premises registration system for region under its purview.

Questions: Are the cost projections realistic?

Do costs burden smaller producers more than larger producers?

Private costs vs. public costs

Location: The premises registration system:

address, contact name, type of premises, and phone number to contact the person in charge of the premises.

Key pieces of information sent to national premises information repository to make information available in case of disease traceback needs.

Questions: Do we need to have all this information?

Why? Where will the location information go?

Who will have access to the information?

RFID – Animal Ag Technology:

Some technologies will work better for some species than for others.

USDA focus on design of identification data system as opposed to what type of technology to use

Once identification system is designed, the market will determine which technologies will be the most appropriate to meet the needs of the system.

Animal owners using RFID for official identification have been told they will not necessarily need to have an RFID reader; Producers have also been told free to use any data management service

Questions: Is technology neutral to species and to types of producers?

Access to information gathered by the technology?

RFID – Animal Ag Animal Identification:

USDA proposed animals needing identification individually would have a 15-character number.

Groups or lots of animals would be identified through a 13-character number, and premises would be identified through a 7-character number.

USDA's Animal and Plant Health Inspection Service (APHIS) identified plans to pursue rulemaking to officially recognize 7-character premises identification number, 13-character group/lot identification number, 15-character AIN.

RFID – Animal Ag Use of tagging stations approved

Entities operating from a fixed location that have been officially approved by APHIS to apply identification devices to animals that are required to be identified.

Animal owners required to individually tag animals that leave the premises of origin can elect to transport animals to an approved tagging station.

pay operator of tagging station to apply individual animal identification devices & report identification information

tagging stations may include, but not be limited to: an existing livestock marketing facility, a veterinary

clinic, a fairgrounds, or a facility specifically dedicated to performing tagging services.

RFID – Animal Ag Under the current plan, animals that never leave a premises

do not need to be identified. However, animal owners are encouraged to identify animals and

premises, regardless of the number of animals present, since many animal diseases may be spread whether an animal leaves its home premises or not.

Examples of such diseases include West Nile virus, foot-and-mouth disease, vesicular stomatitus, and equine infectious anemia.

When people show or commingle their animals with animals from multiple premises, the possibility of spreading disease becomes a factor. Those animals will need to be identified.

Questions: Impact on animal shows/fairs

Impact on those stakeholders who own/raise animals not entering the food system

What if animals aren’t identified but DO leave the premises? Many animals are known trespassers!

RFID – Animal Ag Registered premises: Following information about registered premises is required:

premises identification number; name of the entity; appropriate contact person; street address/city/state/zip code; contact phone number, operation type; the date the premises number was activated, the date the premises number was deactivated, and the reason for deactivation.

State or Tribal animal health authorities will receive data or have access to data through premises registration systems

USDA will store the data in the national premises information repository.

Questions: Storage of data & access to stored data by non-public officials

Access to data by criminal justice officials Accses to data by land developers or those seeking

information concerning activities occurring on registered land

RFID – Animal Ag Once an animal has been assigned an AIN, USDA will be

able to trace its movements and carry out efficient epidemiological investigations by:

keeping a record of the AIN, the premises identification that the AIN was seen at or

allocated to, the date the AIN was seen or allocated, and an appropriate event code (e.g. sighting, movement-in,

movement-out, etc.). Additional information that can be important in a

disease investigation may be reported animal's species date-of-birth (if possible) sex and breed

RFID – Animal Ag Some species will likely be identified through group/lot

identification numbers. Producers will keep a record of the lot identification

number, the premises identification where the lot identification number was seen, and the date it was seen.

As part of the NAIS, Federal, State, and Tribal animal health and public health officials will have access to information repositories when they need data to administer animal health programs at the state and national level.

For example, access the database if a USDA program disease (tuberculosis or brucellosis) or suspected foreign animal disease is reported and requires an epidemiological investigation.

May also access database during emergency response simulations.

RFID – Animal Ag Which animals included: Working groups develop plans for

aquaculture, camelids (llamas and alpacas), cattle/bison, cervids (deer and elk), equine, goats, poultry, sheep, and swine

RFID – Animal Ag Confidentiality of Information USDA:has stated that proprietary production data will remain

in private databases. However, FOIA and discovery methods can be used to obtain

information from a Federal agencies when that agency has custody and control of a record.

Discovery can enable access to privately held data as well USDA has indicated that it “is very much aware of producers'

concerns about the confidentiality of information” collected as part of the NAIS and is “taking them very seriously” as officials explore the most effective means for collecting animal identification information.

Question: No methods for protecting information from improper public

disclosure have been identified – will these issues be addressed?

RFID – Animal Ag The proposed U.S. Animal Identification Plan is based upon the

use of ISO standard RFID technology to track cattle. Low-frequency transponders operate at 125 to 134.2 KHz and

have a read range of less than three feet. Typically cows are tracked as they move down a chute to and

from a corral. Readers set up on either side of the chute to read tags in the animals’ left ear. Chutes typically made of metal, which can interfere with the performance of the system.

In addition, “tracking a cow on the move” is different that tracking an inanimate object on a pallet.

High frequency v. low frequency

Question: Will tracking and frequency issues be addressed so that

consistency occurs and practicality is addressed? If not, will the system ever be adequate?

RFID – Animal Ag Cost: RFID transponders est. cost $2.25 each. A hand-held wand reader is about $400 Investment in computers and software. KSU interactive spreadsheet developed to estimate costs of

RFID hardware, software and equipment: (The spreadsheet can downloaded at www.beefstockerusa.org/rfid.)

Avg. herd size in US is 40 head; costs may exceed capacity to implement at the herd level.

Will costs remain the same over time?

Questions: Do costs improperly impact smaller producers?

Will funds be available to offset these costs? Unfunded mandates?

Private burden of a public system

RFID – Animal Ag Liability of producers. Today, retailers and packers bear the weight of litigation when

recall occurs as a consequence of food safety issues Producers concerned that lawyers will be able to trace back further

to the farm level and initiate legal action against the producer in food safety litigation

Smaller or family farmers concerned they will not have resources to defend themselves

Petitions now circulating objecting to the entire system Horse owners Small operations Recreational operations

Questions: Will the system address these concerns?

Real concerns need real answers Liability protections/shields? Right to farm? Right to raise

animals?

RFID – Animal Ag Many cattle producers (ranchers, stockers and feeders) and

value-added cooperatives or alliances concerned about possibility of unscrupulous access and use of the data by their competition.

The question of who has access to the data is an important one for many small producers - fear that the government and those opposed to the consumption of beef could use information in a way that would harm the industry.

Questions: If those comprising the steering groups for the system are only

representative of larger operations, can the system ever be truly fair and comprehensive?

Will competitors and those with whom the producer are in contract have unfettered access to information

Will financial community or law enforcement have unfettered access?

Will other agencies of government have unfettered access?

RFID – Animal Ag Ethical Considerations & Animal ID

What are “ethics” Codes of conduct? Right and wrong?

Who establishes Who enforces Who complies

Standards inconsistent or non-existent across most commercial enterprises

Some movement to adopt ethical constructs in larger business settings (social responsibility agendas; ethics compliance programs) but inconsistency is the rule

RFID – Animal Ag Examples of Ethics in Action:

The Golden Rule Do unto others as you would have them do unto you Or is it…he who has the gold, rules?

Other examples: Is it Truth Is it Fair To All Concerned Will it Build Good Will and Friendships Will it be Beneficial to all Concerned

Rotary 4-way Test

RFID – Animal Ag General Ethical Foundations by Most Commentators:

Least Harm Consistency Impartiality Openness Confidentiality Due Diligence/Duty of Care Refusing to Take Unfair Advantage Preventing Harm Doing Good Respect for Autonomy of Others

RFID – Animal Ag Those raising concerns about the current animal

tracking system point to several issues of the current system that are reflected in basic ethical foundations

Consistency Transparency Preventing Harm Confidentiality Respecting autonomy, etc., etc.

No entity/no one is addressing ethical constructs relating to the system as a whole

A subject for another day But may impact acceptance and compliance with the

system if the perceived problems are not addressed.

RFID – Animal Ag

Thank you!

Contact Info:Janie Simms Hipp, J.D., LL.M.Agricultural Law and Policy

Jhipp1055@aol.com479.409.9125 (cell)479.582.5015 (fax)