**Matthew Hilton, J.D., Ph.D.**

Matthew Hilton, P.C.

P.O. Box 1004

Kaysville, UT 84037

\(801\) 682-8736

November 17, 2008

Docket No. APHIS--2008--0077

Regulatory Analysis and Development

PPD, APHIS

Station 3A--03.8

4700 River Road, Unit 118

Riverdale, MD 20737--1238

Dr. John Wiemers

Senior Staff Officer

National Animal Identification Staff,

VS, APHIS

2100 S. Lake Storey Rd

Galesburg IL 61401

Dear Doctor Wiemers:

On behalf of a multi-generation cattle feeder operation in Millard
County, Utah and a producer of cattle grazed and grained, in part, on a
five acre parcel in Juab County, Utah, and their children and
grandchildren who desire to raise cattle and show them at county and
state fairs, I am submitting these comments on the interim rule
concerning the use of 840 in the National Animal Identification System
("NAIS") published in the Federal Register on September 18, 2008, 73
Fed. Reg. 182, pg. 54059 ("the notice").[^1] Other families and
individuals from Arizona, Kentucky, Nebraska or Missouri may also seek
to join in this comment at a later date, and will ratify the concerns
expressed as to them. Clarification and re-submission of the notice of
the Rule is requested for four reasons.

[First, there is ambiguity and direct contradiction within the notice as
to the "voluntary" nature]{.underline}

[and need for "immediate" action.]{.underline}

We adopt and incorporate by this reference the specific references in
the comments on this rule that are submitted by the Farmer-To-Consumer
Legal Foundation challenging the ambiguity, apparent contradiction, and
the enlarging of both the scope and rationale for the rule.

[Second, if the effect of the proposed rule is to make the program
mandatory, six fundamental issues of federalism and due process require
re-consideration.]{.underline}

#1: Recent state legislation regarding the \"voluntary\" option of NAIS
and the legislative directive to the State governments of Arizona,[^2]
Kentucky,[^3] and Nebraska,[^4] must be addressed as a matter of
federalism. The interest is no longer that of an individual agricultural
operator involved with cattle or other livestock; powers reserved to the
states to control matters within their own borders is at issue. Just as
a State government has the constitutional authority to prohibit
radioactive waste from entering its stated geographic boundaries, until
constitutionally justified and mandated by the federal government, a
state government has the right to protect (under State constitutions,
the repository of protections of inalienable rights,) the inherent and
inalienable right of its citizens to liberty and private property
without interference or involvement of the federal government. The
decision by these governments to restrict the growth of NAIS as a
political, non-cost effective, and discriminatory plan (as to the
self-reliant small producer and consumer) wrong by prohibiting
participation in its \"voluntary\" provisions is as constitutionally
valid as Abraham Lincoln\'s approach to contain that which is wrong by
limiting the expansion of slavery into \"new territories\" as they
existed in 1858, or the Hyde amendment restricting federal funding of
abortions.

#2: The veterinarian services performed by veterinarians licensed by
state government needs to be clarified. A significant number of states
require accreditation by the federal government in order to achieve and
maintain licensure status. The purpose of the accredited programs is to
"accredit veterinarians and thereby authorize them to perform, on behalf
of APH I. S., certain activity specified in this chapter.\" 9 CFR §
161.1. "An accredited veterinarian shall perform the functions of an
accredited veterinarian and carry at all responsibilities under
applicable Federal programs and Cooperative programs subject to
direction provided by Veterinarian-in-Charge\[.\]" 9 CFR § 161.3. "An
accredited veterinarian shall keep himself or herself currently informed
on Federal and State regulations that are provided to him or her by the
Veterinarian-in-Charge, or by a State official through the
Veterinarian-in-Charge, governing the movement of animals, and on
procedures applicable to disease control and eradication programs,
including emergency programs." 9 CFR § 161.3(h). On September 22, 2008,
USDA through Veterinary Services issued Memorandum No. 575.19 stating
that NAIS premises registration would be mandatory for all federal
disease control programs, and require the registration of the same by
the accredited veterinarian if the veterinarian\'s presence on the
premises is regarding any disease that is regulated to the Code of
Federal Regulations, a disease investigation, inspection or vaccination,
or federal funds are used to support the administration of the animal
disease program. (Memorandum page 1-2.) In nearly all states, this new
directive will make the program mandatory and be a justification for
increased veterinarian costs for the producer who had not been willing
previously to register a PIN. The regulations need to clarify the
economic impact of using state licensed veterinarians to police a
\"voluntary\" PIN registration program, its impact on veterinarian bills
on those who have previously exercised their right to not participate in
the program, and the impact such enforcement will have on ongoing
business relationships between the small producer in the licensed
veterinarian.

#3: Having determined in 2006 that the program was in fact \"voluntary\"
in nature, there is no evident change in Congressional authority to
justify changing that status. If nothing else, a radical change from the
position taken in 2006 would require a substantive explanation when
there has been no statutory amendment or consideration of the issue in
any committee hearings or legislation adopted by Congress.

#4: The information provided heretofore has been in a "voluntary"
program. The current "National Animal Identification System \-- A User
Guide and Additional Information Resources," Version 2.0 -- December
2007, is replete with assurances that the program is "voluntary." Having
already given repeated assurances that the program was "voluntary," USDA
has no authority to retain the information acquired if it changes the
program to a "mandatory" one. Unless notice is given that a failure to
withdraw from a "voluntary program" must occur by a date certain or the
information previously provided "voluntarily" will be retained for
"involuntary" use, the original obtaining of the information and past,
present or future funding for government use of the same, violates due
process, individual privacy rights, as well as basic procurement and
grant requirements.

#5: Change to an "involuntary" program vitiates the consent given for a
"voluntary" program. Absent "voluntary" consent, the acquiring of the
information exceeds the authority of government as part of the existing
regulatory requirements. Indeed, in 2008 the Missouri General Assembly
adopted a general statute identified under § 267.168.1(2) that stated:
"Any person who participates in the [national animal identification
system]{.underline} may withdraw from the system at any time. All
personal information relating to a participant shall be deleted from the
system when the participant withdraws, unless the participant is part of
an ongoing disease investigation or disease monitoring or control
program." (emphasis added.)

#6: Change to an "involuntary" program vitiates the sufficiency of the
notice given for a "voluntary" program. The extensive commentaries that
have accompanied all of the notices provided in the Federal Register
have indicated the program was "voluntary." This notice is indicative of
the notice given on September 18, 2008. The assurances of a voluntary
program are fundamental in the decision of a state government and a
livestock producer's decision to participate. Imposing, at this
juncture, a direct contradiction of the repeated assurances that were
given as to the nature of the program, (and not just the proposed or
interim rule for which notice was being given), is not within what would
be reasonably anticipated as occurring from comments submitted to the
APHIS, USDA. As such, based on the extensive assurances given in the
Federal Register over a period of years, a change of this magnitude
would deny livestock producers due process on the grounds of inadequate
notice.

[Third, the proposed rule continues USDA action to greater government
commitment in the absence of any cost-benefit analysis.]{.underline}

NAIS consists of three components: (1) registering all \"premises\" that
manage or handle livestock, such as farms, feedlots, veterinary clinics,
and livestock markets; (2) identifying livestock animals; and (3)
tracking animal movements throughout the production process, from their
premises of origin to their slaughter or death. The proposed regulation
deals with the second-tier of NAIS without any cost-benefit analysis
being provided for the first-tier.

USDA has continued to fail to produce a cost-benefit analysis for its
conduct despite promises to do so. "The Senate Appropriations Committee
and the House of Representatives have raised concerns in recent years
about how USDA has spent funds to develop and implement NAIS," and in
2004 and 2006 the USDA's advisory NAIS Subcommittee[^5] recommended that
USDA prepare an in-depth, cost-benefit analysis for NAIS as part of the
strategic planning process.[^6] The 2007 Report of the Government
Accounting Office regarding the United States Department of Agriculture
National and Animal Information System ("NAIS") ("GAO Report") stated
that despite beginning the program's implementation in 2004, "\[n\]o
comprehensive cost estimate or cost-benefit analysis for the
implementation and maintenance of NAIS currently exists. As a result, it
is not known how much is required in federal, state, and industry
resources to achieve rapid and effective traceback \[of disease,\] or
whether the potential benefits of the program outweigh the costs."[^7] A
contract from USDA was awarded to a consortium led by Kansas State
University in June of 2007, with a USDA commitment in the GAO report for
the "publication of the cost-benefit analysis is targeted for mid-2008."
No cost-benefit analysis has been released.

The reservation of necessary cost-benefit adjustments under the Version
1.0 2008 Business Plan serves to exacerbate the delay. "As the program
advances and more information is available, this estimate \[of 70%
Critical Mass of animal registration\] will need to be reevaluated. The
results of the benefit cost analysis will also provide liable
information to further define the level of participation needed. [In
late 2008, minimum and long-term participation level will be established
based on a balance of economic risk and cost necessary to achieve the
next level of traceability]{.underline}." (Plan page 12, emphasis
added.) Changes to animal identification numbers are the "next level of
traceability". The rule is premature until the "next level" is justified
on a cost-benefit basis, or at least, its impact addressed on the
custom, culture and continuation of the small producer and consumer.

Please make these comments part of the record on your decisions, and
make them available for public review. Please feel free to contact me if
you have any questions on this matter.

With best regards, I continue to remain,

Sincerely yours,

/s/

Matthew Hilton

[^1]: These individuals and families may intervene in the
    Farmer-to-Consumer Legal Defense Fund, and several of its members
    civil complaint against the United States Department of Agriculture
    ("USDA") and the Michigan Department of Agriculture ("MDA") in the
    United States District Court for the District of Columbia, Case No.
    1:08-cv-01546-RMC. That complaint alleges that NAIS is unlawful and
    is unlawfully being implemented by MDA. The complaint seeks
    declarations and injunctions declaring NAIS unlawful and prohibiting
    its further enforcement or implementation nationally. These comments
    are not intended to be a waiver of any argument or defense the these
    individuals and families may have in the Case.

[^2]: A.R.S. § 3-1207 (2008) ("A. In addition to other powers and duties
    conferred by law, the director may cooperate with the animal and
    plant health inspection service of the United States department of
    agriculture, or other agency of the United States vested with
    similar powers and duties, in: 1. The control of contagious or
    infectious diseases of animals, and contagious or infectious
    diseases of poultry.2. The [national animal identification
    system.]{.underline} B. Inspectors of the animal and plant health
    inspection service may exercise all rights and authority granted to
    livestock officers, but they do not have enforcement powers granted
    to livestock officers. C. Premises registration data, animal
    identification data and animal tracking data collected by the
    director from voluntary participants pursuant to the [national
    animal identification system]{.underline} are not subject to
    disclosure pursuant to title 39."); A.R.S. § 3-1214 (2008) ("The
    director, department or any other officer, agency or instrumentality
    of this state shall not mandate or force participation in the
    [national animal identification system.")]{.underline}

[^3]: KRS § 257.010 (2008) ("As used in this chapter, unless the context
    requires otherwise: ...

    \(8\) \"Livestock\" means cattle, sheep, swine, deer and elk, whose
    regulatory requirements are under KRS Chapters 150 and 246, that are
    privately owned and raised in a confined area for breeding stock,
    food, fiber, and other products, goats, horses, or any other animals
    of the bovine, ovine, porcine, caprine, or equine species; (9)
    \"[National animal identification system]{.underline}\" means a
    national program intended to identify animals and track them as they
    come into contact with or commingle with animals other than
    herdmates from their premises of origin; ...(11) \"Owner\" means any
    person owning or leasing from another, or having in charge any
    domestic animal; ...

    \(13\) \"Premises\" means any portion of land, or any structure
    erected on land, and any vehicle or vessel used in the
    transportation of passengers, goods, or animals."); KRS § 257.497
    (2008) ("(1) The board may promulgate administrative regulations
    necessary to carry out the provisions of the [national animal
    identification system]{.underline} if the system becomes mandatory
    through final federal action in accordance with the Administrative
    Procedure Act, 5 U.S.C. sec. 500 et seq., as amended. If the system
    becomes mandatory, the administrative regulations shall be no more
    stringent than the federal law or regulations. (2) As long as the
    [national animal identification system]{.underline} is voluntary,
    the board shall not: (a) Mandate or force participation in the
    system or any other similar system that regulates livestock or
    poultry, as defined by KRS 246.010, including premise registration,
    animal identification, or the tracking or surveillance of livestock
    or poultry; (b) Withhold indemnity as provided in KRS 257.120 and
    257.130 based solely on nonparticipation in the [national animal
    identification system;]{.underline} or (c) Deny, revoke, or limit
    services, licenses, permits, grants, or other benefits or incentives
    to a person if that person does not participate in the [national
    animal identification system.]{.underline}(3) Nothing in this
    section shall be construed as prohibiting: (a) The board from
    establishing or participating in disease control programs
    specifically designed to address a known disease in a specific
    species of livestock; (b) The board from operating livestock
    identification, brand registration, or inspection programs as
    authorized under the Kentucky Revised Statutes; or (c) Private
    agricultural industry organizations from establishing voluntary
    source verification programs for their own members or others who
    elect to participate. (4) No city, town, county, or other political
    subdivision of the Commonwealth shall adopt or continue in effect
    any ordinance, resolution, rule, or regulation requiring
    participation in the [national animal identification
    system]{.underline} or any other similar system that regulates
    livestock or poultry, as defined by KRS 246.010, including premise
    registration, animal identification, or the tracking or surveillance
    of livestock or poultry. Local legislation in violation of this
    subsection shall be void and unenforceable. (5) Except as provided
    in subsections (6) and (7) of this section, the board shall not
    release any records, data, or information collected, recorded, or
    otherwise, deemed confidential for the purposes of the [national
    animal identification system.]{.underline}(6) Any records, data, or
    information deemed confidential under application of subsection (5)
    of this section shall be subject to inspection only upon order of a
    court of competent jurisdiction.(7) Nothing in this section shall
    limit the release of records, data, or information to another state
    or federal agency if the release of the information is necessary to
    prevent or control disease or to protect public health, safety, or
    welfare.")

[^4]: R.R.S. Neb. § 54-702 (2008) ("The Department of Agriculture may,
    within the framework and consistent with standards of the [National
    Animal Identification System,]{.underline} cooperate and coordinate
    with the Animal and Plant Health Inspection Service of the United
    States Department of Agriculture and other local, state, and
    national agencies and organizations, public or private, to define
    premises where livestock are located, to develop a voluntary
    premises registration system for Nebraska, and to implement other
    state components of a voluntary national uniform system of animal
    identification. If the department implements such a system, the
    department shall also develop and facilitate a process of withdrawal
    of registration that would remove premises identifiers from its data
    base. Written confirmation shall be sent upon withdrawal of
    registration from the department\'s data base. The department shall
    cooperate with the United States Department of Agriculture in the
    process to withdraw registrations.") [Note]{.underline}: The 2008
    amendment, in the first sentence added \"voluntary\" twice; and
    added the second through fourth sentences.

[^5]: The USDA Web site as of October 23, 2008 reports that "\[t\]he
    recommendations developed by the various Species Working Groups are
    provided to the NAIS Subcommittee which serves under the
    Secretary\'s Advisory Committee on staff providing program resources
    and administrative support." Members of the NAIS subcommittee and
    their affiliations identified on the Web site are: John Adams
    (National Milk Producers Federation(Member of SACFAPD)); Linda
    Campbell (American Dairy Goat Association); Dr. Bob Hillam (Texas
    Animal Health Commission), Kelli Lundlum (American Farm Bureau);
    Marcine Moldenhauer (Excel); James M. Niewold (Swine Producer
    (Member of SACFAPD)); Michael Rybolt (National Turkey Federation);
    Dr. Clarence Siroky (Industry/ Veterinarian); Scott Stuart (National
    Livestock Producers Association); Kerry Thompson (American Horse
    Council); Dr. Patrick Webb (National Pork Board); Gary Wilson
    (Cattle Producer, Ohio Department of Agriculture); Dr. Cindy Wolf
    (Sheep/Cattle Producer, University of Minnesota); Dr. Taylor Woods
    (Missouri Department of Agriculture).

[^6]: "In addition, 29 of the 32 expert panel members said that USDA
    should definitely or probably publish a cost- benefit analysis that
    contains detailed NAIS cost and benefit information for the
    different sectors of the livestock industry, states, and USDA. The
    NAIS working groups, other livestock industry representatives, and
    state animal health officials we interviewed said that the cost of
    implementing NAIS remained one of their biggest concerns. For
    example, in comments to USDA in 2005, the Livestock Marketing
    Association wrote that it is 'highly critical of the fact that too
    little has been known' about the potential costs of establishing a
    national animal ID system and about who will bear those costs.
    Furthermore, the association wrote that a cost-benefit analysis is
    'long overdue' and that without better information, NAIS appears to
    be prohibitively expensive for the livestock industry to implement.
    As a result, without a reliable cost-benefit analysis that is
    consistent with federal guidance, stakeholders are unlikely to
    participate in NAIS due to their uncertainty that NAIS program
    benefits outweigh program costs." (GAO-07-592 National Animal
    Identification System, at 33.)

[^7]: GAO Report, GAO-07-592 National Animal Identification System,
    Executive Summary Page of Findings before Table of Contents.