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

To whom it may concern:

On behalf of the Farm-to-Consumer Legal Defense Fund ("Fund") and its
more than 1000 members nationwide, 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").

As you know, the Fund and several of its members have filed a 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 Fund or its members may have in
the Case.

As an initial matter, the notice provides that imported animals cannot
be tagged with an 840 identification number yet repeatedly states that
the numbering system is voluntary. Consequently, we want to make it
clear that this interim rule, by itself, means domestic animals may be,
but do not have to be, tagged with an 840 identification number.

This clarification needs to be made clear because 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. The statements made in Memo No. 575.19 are in
direct contradiction to previous statements that NAIS premises
registration was voluntary. Consequently, since Memo No. 575.19 was
issued after the notice was published in the Federal Register, USDA
needs to clarify whether use of the 840 numbering system remains
voluntary in this country under USDA regulations. As set out in the
Fund's Case, the USDA has taken actions outside of issuing regulations
that have led to mandatory implementation of portions of NAIS.

Therefore, the Fund and its members urge the agency to withdraw its
September 22, 2008 memo and clarify the interim rule to specify that the
840 numbering system is not mandatory for domestic animals.

Initially, and perhaps most fundamentally and importantly, the notice on
pg. 54061 at the conclusion of the "analysis" under the Regulatory
Flexibility Act states that "*other animal identification numbering
systems currently permitted for use on official eartags \* \* \* will
continue to be recognized as official. Therefore, no animals will be
required to be retagged due to this rule.*" USDA needs to explain why,
if that is the case, the current numbering systems are not sufficient
for "enhanced response capabilities." This explanation becomes all the
more necessary when these statements are read in context with other
statements made in the notice, some of which are described below.

For example, the notice states that limiting use of the 840 numbering
system to domestic operations "*is expected to benefit the livestock
sector generally, and producers in particular, by enhancing APHIS'
animal disease response capabilities*." USDA needs to explain how using
a single numbering system or placing electronic eartags in the ears of
animals makes them healthier. Animal health is determined by access to
pasture for ruminants, access to outdoors for other animals, proper feed
and forage for their diet, protection from hazardous confinement
situations, plenty of exercise, and a host of other natural factors. The
claim that limiting use of the 840 numbering system to only domestic
animals affects their health needs to be either deleted or substantiated
with scientific evidence. A statement about "enhancing response
capabilities" is insufficient given the fact that USDA appears to admit
that existing numbering programs are sufficient in tracking and
preventing animal disease.

The notice also suggests that "immediate action" is required to "enhance
our animal traceback capabilities." USDA should make it clear that NAIS
has nothing to do with tracing animals back to their country of origin
since this notice pertains only to a numbering system for imported
animals. Indeed, USDA needs to make clear that an eartag on an animal
has nothing to do with the rampant contamination that exists at food
processing and handling facilities where the nation's food supply is
processed and distributed. USDA's suggestion that "immediate action" is
required for traceback capabilities is unfounded.

The notice also refers to the 2002 Farm Bill and to the country of
origin labeling requirements, or COOL. The notice suggests that
"immediate action" is required to "use the 840 AIN for pu\[r\]poses of
the COOL program." Under the governing statute, USDA cannot require
animal identification to implement COOL. Consequently, we urge USDA to
issue a clarifying statement that COOL does not require compliance with
NAIS.

With respect to the notice's analysis under the Regulatory Flexibility
Act, the notice refers to the estimated number of livestock
establishments in the United States and then goes on to conclude that
the interim rule "is not expected to have significant economic effects
on these livestock establishments, as \[the interim rule\] is not
expected to affect the cost of animal eartags." USDA needs to explain
why a proposed rule that impacts only the "importation" of animals into
the country should be analyzed for its impacts on domestic livestock
establishments.

It appears USDA is attempting to continue to avoid addressing the impact
of NAIS on small businesses when NAIS is, in practice, being implemented
on a mandatory basis. USDA needs to address the economic impact on small
business domestic livestock establishments and related small businesses
if the agency's practice of coercive implementation continues. USDA's
failure to analyze the financial impact NAIS will have on small
businesses has gone on for too long.

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

Looking forward to hearing from you soon, I remain,

Respectfully,

[/s/ David G. Cox]{.underline}

David G. Cox

General Counsel