“Who will have access to our information?” is the question the beef industry needs answered as the framework is being laid for the National Animal Identification System (NAIS).

“The primary concern of our members and producers is the confidentiality of the data,” says Allen Bright, a Nebraska beef producer, National Cattlemen's Beef Association (NCBA) chairman of the Animal ID Commission and a member of the U.S. Animal Health Association Beef Cattle ID Working Group.

Government regulators and industry leaders are trying to determine that answer as discussions continue on developing NAIS. One of the biggest impediments to reaching consensus is who controls the ID database — the government or a private third party.

“Our members have said, in policy, that we want the database privately held,” Bright says. “We've been very clear about that, and everyone knows the way we feel.”

For NAIS to work as a voluntary program, which is how USDA is currently promoting it, it will need to have a very high industry participation rate. Of course, the government must be involved in the program in order to access information immediately to monitor and track animal diseases, which is the program's purpose.

But some livestock producers worry about such personal data falling into the hands of competing producers or packers. Then there's concern about access by such government agencies as the Internal Revenue Service, the Bureau of Land Management or the Environmental Protection Agency. And what about folks who might not have the best of intentions toward animal agriculture?

Industry arguments

One proponent of a privately held ID database is NCBA. The organization's membership believes the industry will derive more value-added results from creating a private database system.

“There are tens of thousands, if not hundreds of thousands, of cattle already in various programs at different levels across the country,” says Jay Truitt, NCBA executive director of legislative affairs. “We think it's possible for us to provide for USDA the opportunity to access those systems, and it still requires for them to have some framework that provides some national standards and national guidance at some level.”

Truitt says the industry is already beginning to dictate the need for a national ID system, and he believes that market pressures will be enough to move producers to begin tracking their cattle.

Bright says the industry would also like the database to stay in the hands of a private third party because of information ownership issues.

“It's a very basic argument and comes to the core of American beliefs and rights as U.S. citizens,” he says. “That information is ours.”

Bright adds that if USDA holds and controls the information, ownership is essentially transferred to them.

The coin's other side

USDA representatives, on the other hand, contend it's important for the database to remain in government hands. It is necessary, they say, for the government to exercise greater control over monitoring, as well as accessing information when it's needed to track animal disease.

USDA believes that to achieve its goal of 48-hour traceback of all animals exposed to infectious and contagious diseases, the database needs to be managed within the government.

“The authority the USDA is relying on for our animal ID system is our Animal Health Protection Act,” says Nancy Bryson, USDA general counsel.

She says under that statute, USDA's Animal and Plant Health Inspection Service (APHIS) is charged with protecting the nation's herds and flocks from infectious and contagious diseases, or eradicating such diseases if they are introduced or detected. Those diseases include brucellosis, tuberculosis, BSE, Exotic Newcastle Disease, and Johne's, as well as foot-and-mouth disease (FMD) and high-path avian influenza.

Beth Johnson, senior advisor to the ag secretary, points out the information USDA is seeking is limited to an animal's premises number, individual ID number and its movements through the industry chain up until it is harvested.

“Our very specific purpose is to find out quickly what animals and premises might have been exposed to disease,” Johnson says. “We are not seeking access to the type of marketing data that producer groups are generating in their work with private entities in the retail sector. Those programs offer the industry an opportunity for value-added programs, but are not necessary for animal disease control.”

Phase one of building the database is already underway with the effort to identify premises. Bryson says that as of November about 21,000 premises had been registered in the data system housed by APHIS.

The FOIA question

But, just who will have access to that information?

“I think people who argue in favor of a private ownership model prefer it because it would avoid the possibility that such information would be subject to the Freedom of Information Act (FOIA),” Bryson says.

FOIA mandates that records under the custody or control of federal executive agencies be released upon request, unless they have been ruled exempt from release under FOIA. FOIA doesn't apply to private entities. An exemption to the disclosure requirement is trade secrets and commercial information. Bryson says it's easier to justify applying this exemption if the information is provided voluntarily to the government, which is currently the case with the ID database.

“I've been asked in several hearings whether I can guarantee that information will be considered exempt. I can say how USDA would treat the information, but I can't guarantee the outcome. That's because USDA is not the final arbitrator of this decision, the courts are,” Bryson says. “If we withhold the information, the requester can go to court and challenge the decision. We can reasonably predict the outcome and assume a court will uphold our decision, but we cannot guarantee what any court will do.”

Recognizing this, USDA sent legislation to Congress in October designed to provide further clarity about how information in the federal animal ID system would be treated. It's a fairly simple bill that essentially protects the information of the animal ID system from disclosure, and defines who, and under what circumstances, would have access to it, if USDA manages it.

“The bill would allow the Secretary of Agriculture to disclose the information to partners in the disease eradication control program. When we respond to an animal disease, we do it in partnership with state and local health authorities,” Bryson says.

The bill would exempt NAIS from federal FOIA laws, similar to the exemption provided mandatory price reporting. The bill would also preclude state and local governments from disclosing under their FOIA laws any information relating to animal ID that they receive from USDA.

A few states, such as Kansas and Utah, already have laws in place outlining state animal ID systems, and protecting the information from disclosure. These laws could serve as models for other states interested in taking similar action.

Congress has not held any hearings on the bill or scheduled it for mark-up. Bryson says that, as with all legislation, a robust debate on the details should be anticipated.

Agree to disagree

While USDA maintains it's in the best position to manage the data, NCBA officials continue to back their membership's decision to push for third-party data management.

Bryson says she's confident in USDA's security system and feels the information will be well protected.

Truitt adds: “We just disagree, and at some point it becomes a political issue. That doesn't mean that in the meantime we still don't need to keep working together on all areas where we know, regardless of the outcome, that we need to be cooperative with each other.”

The liability factor

As the beef industry continues to build the National Animal Identification System (NAIS), producers still have concerns to be addressed before NAIS can move forward. Among them is the potential for increased producer liability.

Mifflinburg, PA, beef producer, Crystal Bollinger, testified before USDA officials in September. She asked USDA to make sure producers are protected from any undue liability that could result from NAIS.

“Producers are worried they might be forced to share liability for food safety problems that are now limited to meat merchandisers,” she said. “The U.S. animal ID system must protect producers from liability acts of others after livestock leave our control.”

On the federal level, says Nancy Bryson, USDA general counsel, producers shouldn't have any liability concerns.

“Our animal ID system is being created under the Animal Health Protection Act, which doesn't have any liability for tort action in it,” she says.

Where liability concerns may exist, she says, is on the state level where individual state laws vary. She says some states are taking a proactive approach in addressing liability and confidentiality in legislation.

Kansas, for instance, passed legislation recently that says producers will be held to a standard of ordinary care in liability cases, Bryson says. And, that standard of ordinary care will be presumed met, unless there is evidence to the contrary.