NAIS National Animal Identification System Analysis
Throughout history, humans have raised animals for food, transportation, and companionship. This country has deep agricultural roots, and Texas has a proud history of independent livestock ranches. In the last 60 years, however, our country and our state have become increasingly urbanized, with many people losing their connections to animals. The livestock industry has become increasingly vertically integrated in the hands of a few large corporations. Yet in the face of this increasing industrialization, there has been a growing movement back to the land and animals.
Third-generation ranchers have withstood the economic pressure and held on to their land and their independence; other people have moved away from the cities and begun farming for the first time in their lives; consumers increasingly demand food from these local producers. This movement poses great promise for our rural communities and local economies throughout the state. And the connection with animals can be seen outside of the context of food, whether it is children playing with baby chicks in their schoolroom or the intense love that horse owners have for their animals.
The National Animal Identification System, and the Texas Animal Health Commission’s intent to implement it, threatens to cripple or even destroy this essential connection between individuals and animals. If fully adopted and implemented, the likely outcome is that animal ownership increasingly will be limited to large entities who can afford to comply and who are willing to accept the government intrusion. Yet this program will do virtually nothing to safeguard animal health or human health and welfare.
HB 1361, codified at §161.056 of the Texas Agricultural Code, provides that the Texas Animal Health Commission (“TAHC”) “may develop and implement an animal identification program that is consistent with the United States Department of Agriculture’s National Animal Identification System.” In order to understand the situation, one must therefore begin with the USDA.
The USDA’s Proposed National Animal Identification System
The USDA has not yet adopted regulations for a national animal identification system (“NAIS”). In 2005, it published a draft strategic plan and draft program standards for the NAIS. Based on these documents, the NAIS is to be implemented in 3 stages:
(1) Premises registration: every person who owns any livestock animal will have to register their premises with the state and be assigned a nationally unique, 7-character premises identification number.
(2) Animal identification: There will be two levels of animal identification: individual animal and group or lot identification. Group or lot identification can only be used where groups of animals are managed together from birth to death and not commingled with other animals. Right now, only poultry and swine are being considered for group identification. If animals do not meet the requirements for group identification, they will have to be individually identified. Every animal will be assigned a unique 15-digit number. Animals will be implanted with either a microchip or a radio frequency tag, or otherwise physically identified. The tag will have to bear the entire 15-digit number, with the number easily read. For at least some species, radio-frequency identification devices would be required.
(3) Animal tracking: Every time a tag is applied, an animal is moved onto or off the premises, a tag is lost or replaced, an animal is killed or dies (whether at a slaughterhouse or on the farm/ranch), or an animal is missing, the event will have to be reported to the government within 24 hours.
The USDA’s draft plan notes that the program would initially be voluntary, but would be transitioned into a mandatory program. The USDA’s timeline indicates that premises registration and animal identification would become mandatory in January 2008, and animal tracking would become mandatory in January 2009. The regulations currently being proposed by the TAHC, discussed next, are not consistent with this timeline.
Proposed Texas Regulations
On December 6, 2005, the TAHC proposed regulations to establish mandatory premises registration. If adopted, these regulations would require anyone who owns any animals to register their premises with the state. “Animal” is defined so as to include essentially every animal except dogs, cats, and hamsters. Specifically, “animal” includes “livestock, exotic livestock, domestic fowl, poultry and exotic fowl.” Livestock, in turn, includes cattle, horses, mules, asses, sheep, goats, and hogs; exotic livestock means “grass-eating or plant-eating … mammals that are not indigenous to this state” and include animals from the deer and antelope families; poultry includes chickens, turkeys, and gamebirds; and exotic fowl means any avian species that is not indigenous to this state. The premises registration includes the GPS coordinates.
While the proposed regulations address only premises registration, they are clearly intended to be simply the first part of the entire system. Indeed, the TAHC has stated this fact: “Premises registration is the foundation for all other components of the NAIS.” Moreover, the proposed regulations include definitions for the next phase of the program. For example, the proposed regulations define animal identification numbers and group identification numbers. The proposed regulations even include a definition for “Radio Frequency Identification Device (RFID)”: “unique individual animal identification with an identification device that utilizes radio frequency technology.”
The TAHC’s Fact Sheet that was released with the proposed premises registration regulations also reviews the “basics of the National Animal Identification System,” including animal identification and animal tracking.
The Flaws with the NAIS and the Proposed Texas Regulations
I. The TAHC’s proposed regulations are premature
The TAHC’s proposed regulations establishing mandatory premises registration are premature. The USDA’s draft plan sets January 2008 as the goal for mandatory premises registration. There is no basis in the national plan, which HB 1361 specifically references, for moving forward with mandatory requirements so quickly.
Further, the USDA has not even published proposed regulations for premises registration or the rest of the animal identification system, much less adopted a final plan. Yet the TAHC is moving ahead with laying the “foundation” and defining the terms that will be critical to the second and third stages of the system.
Notably, HB 1361 is entirely permissive. The Legislature repeatedly used the word “may,” and there are no directives to the TAHC to take any actions by any deadline.
II. There is no statutory authority for the NAIS, which limits the TAHC’s authority
HB 1361 specifically limited the TAHC’s authority: “the commission may develop and implement an animal identification program that is consistent with the United States Department of Agriculture’s National Animal Identification System.” By using the word “that,” the Legislature created a restrictive clause, one giving essential information about the preceding noun. In other words, the TAHC’s authority is inextricably tied to the national system.
This raises two barriers to the TAHC’s development of an animal identification plan. First, as discussed above, the USDA has yet to adopt regulations. With only a draft proposed plan, there is nothing for the TAHC to be consistent with. TAHC cannot determine what the appropriate scope of premises registration should be when the rest of the program has yet to be fully developed and is subject to uncertainty.
Second, the USDA itself lacks statutory authority to adopt an animal identification plan. The USDA has stated that the Animal Health Protection Act is the source of its authority. But that statute addresses only import and export of animals, interstate travel, quarantines areas, and related programs. The statute contains no provisions that mention registration of every livestock owner’s farm or a nationwide or intrastate animal identification and tracking program, nor are there any provisions that would provide authority for such a program. Indeed, there were multiple bills introduced in the 108th Congress to amend the statute to provide for an animal identification system and limit disclosures of the information collected under the Freedom of Information Act, and none were adopted. There are three bills that have been introduced during the current Congressional session for the same reasons. Congress clearly recognizes the USDA’s lack of authority, even if the USDA has ignored that problem.
III. The animal identification system would violate the Constitution
In addition to ignoring the lack of statutory authority, the USDA and TAHC appear to have ignored the Constitutional violations posed by the USDA’s proposed plan.
The proposed system violates the Fifth and Fourteenth Amendments’ protections of property and fundamental rights. The plan would establish a huge, permanent database of individual citizen’s real property (the homes and farms where animals are kept) and personal property (the animals themselves). Until now, the only general systems of permanent registration of personal property in the United States have been for two items that are highly dangerous if misused: motor vehicles and guns. The government has no basis to subject the owner of a sheep or a horse to more intrusive surveillance than the owner of a gun. For example, while the owner of a gun can generally take that gun and go hunting on other properties without involving the government, the proposed system would require the animal owner to report, within 24 hours, any instance of the animal leaving or returning to the registered property. Moreover, with respect to food animals, this plan would heavily burden individuals’ ability to raise food for themselves and their families. It is difficult to imagine a right more fundamental than the right to raise food to survive.
Further, having collected information on people’s private homes and property, the proposed premises registration regulations fail to protect this information. The TAHC’s proposed regulations allow the information to be released to the attorney general’s office, the USDA, the Department of Homeland Security, and the Department of State Health Services. Moreover, the proposed regulations allow the TAHC’s Executive Director to release information to any person the Director considers “appropriate” if the Director determines that livestock “may be threatened” (not that they actually are threatened) and the release of information is “related to actions the commission may take under this section.” This broad, open-ended provision violates the rights of every person who is required to register his or her private residence under the proposed regulations.
The proposed system may also violate the Fourth Amendment’s protections against unreasonable searches and seizures, the equal protection clause, the First Amendment’s freedom of religion clause, and constitutional restrictions on the taking of property.
IV. The stated rationale – to track animal diseases – is flawed and does not support this program
First, it is critical to recognize that animal diseases, in both wild and domesticated animals, have been part of the human existence for thousands of years. The excuse of disease cannot justify every intrusion into citizens’ privacy and burdens on their property rights. The 9/11 hijackers used box blades to hijack the planes, but most citizens would object to regulations requiring every person to register their tools and report to the government whenever they took their tools off the property.
Second, the TAHC has presented no evidence that diseases are not adequately addressed by the current programs. Indeed, the State Auditor found that the current programs are sufficient:
TAHC has in place established systems and processes used for the surveillance of livestock and for the prevention, eradication, and control of livestock diseases. Audit testing verified that the Agency has in place processes to test livestock for diseases, monitor the movement of livestock, and take action on diseased livestock.
The few outbreaks that have occurred in Texas can be addressed by minor modifications to the existing programs or by more adequately funding these programs. For example, in support of the assertion that this animal identification system is needed, the TAHC’s Executive Director pointed to an outbreak of brucellosis in Texas. Yet the Executive Director also noted that the source was a farm that was deliberately selling heifers before the age of 18 months to avoid testing. This problem could be addressed very easily by modifying the current brucellosis program to require the testing of all animals at the time of sale, regardless of age. It is a Class C misdemeanor for a person to knowingly fail to handle an infected animal in accordance with the TAHC’s rules.
Similarly, when considering the inclusion of horses in this program, West Nile virus is probably the best known disease that can strike both horses and humans. But West Nile Virus is spread by mosquitoes, so that tracking horses would be entirely ineffective. Further, there were only 1,075 cases of West Nile Virus in horses in 2005, only 27 of which were in Texas (out of an estimated 9 million horses nationwide and 1 million horses in Texas). These numbers are a significant reduction from 2002, 2003, and 2004, indicating that current control programs are working. There is simply no real need for a new program.
Third, the tracking of animal disease 48 hours later does little to address either the prevention of diseases or the safety of our food supply. Just as an example, with respect to the concerns of BSE (“Mad Cow Disease”), the most effective protection would be a system of testing every slaughtered cow, as is currently done in Europe and Japan, rather than the 1% or so that the U.S. currently tests. Moreover, since BSE is caused by feeding animal products to other animals, we know exactly how to prevent it. Surely our limited state resources would be better used by stopping practices that cause the illnesses than in tracking diseases after the fact.
Indeed, the proposed regulations and the NAIS wholly fail to recognize the critical issue of different production systems. The susceptibility of animals to disease and the likelihood of transmission differ greatly depending on the conditions under which the animals are kept. During the Exotic Newcastle Disease outbreak in California, for example, the American Veterinary Medical Association noted that the “virus can be spread by vaccination and beak trimming crews, manure handlers, and poultry farm employees. It can also survive for several weeks in a warm, humid environment on birds’ feathers, manure, and other materials.” Confinement poultry operations, in which the animals are debeaked and housed with thousands of other birds in a building, are clearly ideal conditions for the spread of the disease. In contrast, “pastured poultry” operations, in which the birds are kept in natural conditions on rotating pastures, clearly have a far lower chance of developing or spreading Exotic Newcastle Disease or any other virus. As further evidence of this fact, in the 2004 outbreak of avian flu in Gonzales County, the disease was found in a 6,600 bird flock in commercial poultry operation; but despite testing more than 350 nearby non-commercial flocks, no infected birds were found in non-commercial flocks. A recent report indicates that the spread of avian flu, including the greatly-feared H5N1 virus, is due to the conditions in confinement poultry operations. Consistent with that report, a USDA report found that, out of 45 outbreaks of avian flu in the country of Laos, 42 of the outbreaks occurred in commercial operations.
Despite the clear, scientifically-documented differences between production systems, the proposed premises registration regulations impose the same fee on a backyard poultry owner with 10 chickens living on pasture as a commercial operation with 10,000 chickens living in a crowded building. The homesteader raising a few sheep or cattle on carefully-tended pastures is treated the same as the feedlot with hundreds of animals crowded into small pens. The later stages of the NAIS, animal identification and tracking, will burden non-commercial livestock owners even more than commercial operations, as discussed below. This program is precisely the opposite of what is needed to prevent and control disease.
This program may also increase the spread of livestock diseases by creating a new black market. To understand the potential problem, one has only to look at the outbreak of Exotic Newcastle Disease that occurred in Los Angeles in 2002, a situation that the TAHC has repeatedly used as a key example of why it needs premises registration. That outbreak was started and spread by cockfighting flocks. Cockfighting is illegal in California and the roosters were smuggled in from Mexico. Obviously, people who use their animals for illegal activities will not comply with regulations. Further, if these new regulations are adopted, it is inevitable that some people – whether for religious reasons, economic reasons, or unwillingness to allow the government intrusion – will raise animals illegally without registering their premises. Since they will be acting illegally, they will be far less likely to seek a veterinarian’s help should a disease problem arise. The TAHC notes that the “first 24 hours are the most important for stopping a disease of pest” and urges people to contact their veterinarian at the “first sign of animal disease.” The proposed regulations will undermine the existing systems and processes that TAHC uses to control disease outbreaks.
V. The alternative rationale – that this program is necessary to help the U.S. export market – is not a valid basis for a mandatory program.
The USDA has also stated that the animal identification program is necessary to help the export market. This rationale applies only to food animals, not horses.
With respect to food animals, the issue of the export market could easily be addressed by a voluntary program. Such a program would allow the market to determine how valuable it is to have tracking of animals from birth to death. Any farmer that wishes to export animals or food to other countries could enroll in the program. In turn, these exporters could refuse to buy from anyone who was not also enrolled in the tracking program. From the perspective of the domestic market, this program could simultaneously be used to create a label, which might then demand a premium from concerned consumers, similar to the organic certification program.
Neither the export market nor the domestic market requires a mandatory program that includes every single livestock animal in the country. The free market should be allowed to function.
VI. The program will result in a significant tax on livestock owners
As the USDA admits, “there will be costs to producers” for this program. The TAHC’s proposed regulations establish a $10 annual fee for premises registration, to be paid as a $20 biennual fee. While this may not seem like a large financial burden, it is almost certain to increase.
The TAHC predicts that it will need to hire only 7 full-time employees to handle the registrations. Yet the TAHC also estimates that there are over 200,000 premises in Texas. Assuming that each employee works a normal 40-hour work week, with two weeks of vacation a year, that translates to approximately 4 minutes per registration, assuming they do nothing but input data. As many animal owners do not have internet access or are not able to submit forms electronically, that means that those employees will have to input significant amounts of data themselves, as well as deal with any errors or omissions in the registrations. Even without the issue of enforcement, it is clear that the TAHC cannot actually administer this burdensome program without hiring significantly more people than it has budgeted. An underfunded and understaffed implementation will only ensure that this debacle becomes a complete disaster.
Based on its faulty estimate of the costs, the TAHC has also estimated that premises registration will raise between $1.2 and $1.7 million dollars from 2008 forward, to be placed in the general revenue fund. The definition of a tax is something that raises revenues above and beyond the costs for the program. In the guise of tracking diseases, the TAHC has simply placed a tax on livestock owners.
The fee for premises registration does not even begin to address the full costs of the NAIS. The cost of microchips, the technology that the agencies currently plan to require for cattle, sheep and goats, can range anywhere from $15 to $50 per animal, depending on whether the owner does it himself or requires a veterinarian. That does not include the costs of the reading devices or the continuing costs of updating computer system if the owner chooses to file reports electronically. Even with respect to cattle, that amount can be significant when considered in light of most farmers’ and ranchers’ narrow profit margins. When applied to individual sheep and goats, where each animal may be worth as little as $100 or $150, the cost of microchipping is clearly excessive and burdensome.
Further, the cost for reporting every movement of every animal will differ, depending on whether the owner has to hire additional labor to help with the paperwork requirements. Indeed, with some animals, the time involved could be prohibitive. For example, consider the case of a farmer who has 100 laying hens in a movable shelter in the pasture. These laying hens are of different ages, so that they do not qualify for a group identification number; they must therefore be assigned individual identification numbers and physically tagged. One day, the farmer finds a pile of feathers in the pasture, where a coyote or other predator carried one of the hens away. The farmer will now have to catch each of the 99 remaining chickens and note their identification numbers so that he can report which chicken has gone missing. The farmer will be faced with the option of breaking the law or spending all of his or her time simply counting the chickens.
The problems with reporting are not limited to poultry. Consider another hypothetical: a person who owns just one horse that he or she either shows most weekends. Each weekend, that person will have to file reports with the TAHC, detailing where the horse was taken for that week’s show. Assuming that some of the training is done at a different location, as is common, more reports will have to be filed during the week reporting every movement on and off the premises. If the horse were to colic, which is a fairly common and non-contagious health problem, the owner would have to file yet another report in order to take the horse to the veterinarian. For just one horse that is shown regularly, an owner could be faced with filing dozens of reports a year, possibly up to a hundred reports. If the owner handles all of these reports, the cost in time will be significant. If the owner pays an employee to handle all of the reports, those payments will quickly accumulate.
The above discussion looks only at the direct cost to the owner. Obviously, there will be costs associated with the TAHC’s processing of requests for millions of individual animal identification numbers and all of the tracking reports. The agency will need both personnel and technology to handle the massive numbers of reports, not to mention enforcement of this huge program. Given the TAHC’s need for funding, it is highly improbable that the agency could absorb these costs, so there inevitably will be fees associated with these reports.
The TAHC appears to consider the proposed regulations as the answer to its budget problems. But it has failed to analyze the true costs for the program, both for this first stage and for the program as a whole.
VII. The program’s costs will have wide-ranging effects
The costs discussed above involve the livestock owner’s time and money. Yet the true costs of this program go far beyond those issues.
Some people who currently own animals will choose to sell their animals rather than submit to such an intrusive government program. For some groups, such as the Old Order Amish, the program violates their religious beliefs. These groups believe that they are prohibited from registering their farms or animals in the proposed program due to Scriptural prohibitions. The way of life of these groups requires them to use horses for transportation and raise animals for their family’s own food. The proposed plan would thus place them in the position of violating one or another of their religious beliefs.
Many others animal owners will be forced to sell because of the expense and infeasibility of the program. The TAHC estimates that there are over 200,000 premises with livestock in Texas. While some of these are large commercial operations that can absorb the costs of this program (and pass those costs on to the consumer in the form of higher food prices), the majority are individuals, homesteaders, pleasure horse owners, and small farms and ranches.
The program also places burdens on some of our most vulnerable citizens, those that raise food for themselves and their families. This includes people on social security or disability insurance. Many of these people do not have computers or internet access. For them, the costs of premises registration alone, not to mention the rest of the NAIS, could be prohibitive.
If a significant portion of Texas livestock owners sell their animals, there will be wide-reaching effects throughout the economy. Businesses that sell feed and supplies to small producers may go out of business. Local feed mills may also close. Real estate prices could be depressed as large numbers of rural land parcels are put up for sale. None of these economic effects have been considered by the TAHC.
The equine industry alone is a significant part of the Texas economy. A 1998 study found that Texas is home to over 1 million horses and there are 288,839 Texas horse owners. The majority of participants associate with horses for “quality of life” reasons. Government intrusion and burdensome regulations will negatively impact horse owners’ quality of life, causing many to sell their animals. The equine industry contributes $3.8 billion annually to the Texas economy in direct effects; combined with indirect effects, the 1998 report estimated that the total impact of the horse industry to the Texas economy ranged from $11 to $17 billion annually.
The NAIS, which begins with premises registration as currently proposed by the TAHC, poses significant costs to Texans and our economy.
The TAHC has proposed to lay the foundation for a program that is not legally supportable. Moreover, the program will place significant burdens on individuals who own horses and other livestock without providing any significant benefit. There are far more effective and less burdensome means for addressing concerns about disease.
The TAHC should table its proposed regulations until the Texas Legislature has had an opportunity to review all of these issues in depth and adopt new legislation. Such legislation should specifically limit the TAHC’s authority to a purely voluntary program. A mandatory premises registration, animal identification, or animal tracking program should not be permitted unless enforceable federal rules or legislation require it.
 Draft Strategic Plan, United States Department of Agriculture, Animal and Plant Health Inspection Service (published Apr. 25, 2005) (hereinafter “Draft Plan”) at 8.
 Draft Program Standards, United States Department of Agriculture, Animal and Plant Health Inspection Service (published Apr. 25, 2005) (hereinafter “Draft Program Standards”) at 5-6. See also Presentation by Dr. Hillman, Executive Director of TAHC (Feb. 16, 2006), hereinafter “Hillman Presentation.”
 Hillman Presentation.
 Draft Program Standards at 7.
 Draft Program Standards at 6.
 Draft program Standards at 13.
 Draft Plan at 8-9.
 Draft Plan at 17.
 The proposed regulations do not clearly identify who is responsible. They state that the “owner, manager or caretaker” of a premise must register it. 30 Tex. Reg. 8521, 8524 (proposed 4 TAC § 50.3)). Since many livestock owners lease part of the land on which they manage their animals, there will undoubtedly be disputes between the livestock owners and the landowners as to who is responsible for the paperwork and fees under these regulations.
 30 Tex. Reg. 8521, 8523 (Dec. 23, 2005) (proposed 4 TAC § 50.1(5)).
 Id. (proposed 4 TAC § 50.1(12)).
 Id. (proposed 4 TAC § 50.1(8)).
 Id. (proposed 4 TAC § 50.1(18)).
 Id. (proposed 4 TAC § 50.1(1)). See also USDA Draft Program Standards at 10.
 Fact Sheet from the Texas Animal Health Commission, Premises Identification Proposed Regulations (issued Dec. 6, 2005).
 30 Tex. Reg. at 8523 (proposed 4 TAC § 50.1(2) & (11)).
 Id. (proposed 4 TAC § 50.1(22)).
 Tex. Agric. Code Ann. § 161.056(a) (Supp. 2005).
 Bryan A. Garner, A Dictionary of Modern Legal Usage 765 (2nd ed. 1995).
 The proponents of premises registration may argue that subsection (d) of §161.056 provides independent authorization for premises registration. But that subsection, like all of §161.056, is entirely permissive and does not mandate that TAHC do anything. Moreover, that subsection was presumably included only because the Legislature had to specifically authorize the agency to assess a fee, since it is a tax measure. The premises registration is simply one part of the overall system, as indicated in the TAHC’s own statements.
 Draft Plan at 9.
 See Animal Health Protection Act, 7 U.S.C. §§ 8301-8320 (Supp. 2005).
 See HR 3787, HR 3822, HR 3961, S 2070 & S 2008, 108th Congress (2004-05).
 See HR 1254, HR 1256 & HR 3170, 109th Congress (2005-06).
 30 Tex. Reg. at 8525 (proposed 4 TAC §50.4).
 Id. (proposed 4 TAC §50.4(b)(8)).
 Minutes of the 356th Commission Meeting, Texas Animal Health Commission at 6 (Aug. 16, 2005).
 Hillman Presentation.
 Tex. Agric. Code § 161.041.
 Disease Surveillance Information: West Nile Virus, Animal Plant Health Inspection Service, United States Department of Agriculture, http://www.aphis.usda.gov/vs/ceah/ncahs/nsu/surveillance/wnv/WNV_2005map_122905.pdf
 The health problems caused by confinement or industrial management systems have been well documented in the scientific literature. See, e.g., Cravener, T.L., W.B. Roush, and M.M Mashaly, Broiler Production Under Varying Population Densities, Poult. Sci. 71(3):427-33 (1992); M.R. Baxter, The Welfare Problems of Laying Hens in Battery Cages, Vet. Rec. 134(24):614-19 (1994); D. Herenda and O. Jakel, Poultry Abbatoir Survey of Carcass Condemnation for Standard, Vegetarian, and Free Range Chickens, Can. Vet. J. 35(5):293-6 (1994); T.G. Nagaraja and M.M. Chengappa, Liver Abscesses in Feedlot Cattle: A Review, J. Anim. Sci. 76(1):287-98 (1998); T.G. Nagaraja, M.L. Galyean, and N.A. Cole, Nutrition and Disease, Vet. Clin. N. Am. Food Anim. Prac. 14(2):257-77 (1998); D.H. Tokarnia, J. Dobereiner, P.V. Peixoto, and S.S. Moraes, Outbreak of Copper Poisoning in Cattle Fed Poultry Litter, Vet. Hum. Toxicol. 42(2):92-5 (2000)
 R. Scott Nolen, Emergency Declared: Exotic Newcastle Disease Found in Commercial Poultry Farms, Journal of the American Veterinary Medical Association News (Feb. 15, 2003).
 See Exotic Newcastle Disease, Information from the Texas Animal Health Commission (Apr. 2004) (“In close confinement, such as commercial operations, the disease can spread like wildfire. … However, the virus is destroyed rapidly by dehydration and by the ultraviolet rays in sunlight.”).
 News Release, Texas Animal Health Commission (Apr. 1, 2004).
 Genetic Resources Action International (“GRAIN”), Fowl Play: The Poultry Industry’s Central Role in the Bird Flu Crisis (Feb. 2006) (hereinafter “GRAIN Report”).
 GRAIN Report (quoting USDA, Laos: Poultry and Products—Avian Influenza, GAIN Report, U.S. Department of Agriculture (Mar. 16, 2005)).
 News Release, Texas Animal Health Commission (Feb. 28, 2006).
 R. Scott Nolen, Exotic Newcastle Disease Strikes Game Birds in California, Journal of the American Veterinary Medical Association News (Nov. 15, 2002)
 See New Release, Texas Animal Health Commission (Jan. 1, 2003) (“END likely was initially introduced into Southern California through illegal importation of infected birds.”); Congressman Elton Gallegly, Smuggling Cockfighting Roosters a Conduit to Bird Flu, Santa Barbara News-Press (Dec. 11, 2005).
 See Transcript of Secretary Mike Johnns Remarks to the National Cattlemen’s Beef Association Annual Meeting—Denver, Colorado (Feb. 3, 2006), http://www.usda.gov/wps/portal (Home/Newsroom/Transcripts and Speeches) Release No. 0060.06.
 Draft Plan at 11.
 Texas Animal Health Commission News Release (Feb. 28, 2006) (“He [Dr. Bob Hillman] noted that Texas has more than 200,000 premises.”)
 30 Tex. Reg. at 8522 (estimating that the agency will generate $2,000,000 per fiscal year starting in 2008, and that costs will be $764,581 in 2008, reducing to $336,516 in 2010).
 See County of Harris v. Shepperd, 291 S.W.2d 721, 723 (Tex. 1956).
 Hillman Presentation.
 The 2002 Census of Agriculture found that 91.9% of all Texas farms are owned by individuals, families, and sole proprietorships. See Texas Industry Profile, Office of the Governor—Economic Development & Tourism (Dec. 2005).
 Indeed, the TAHC stated that the proposed premises regulations “will not impact local economies.” 30 Tex. Reg. at 8522. For the reasons discussed in the text, even premises registration will have unintended adverse consequences on the economy. Moreover, it is unacceptable for the TAHC to adopt mandatory regulations to implement the “foundation” of a program and, at the same time, ignore the repercussions of the program as a whole. Texas’ small farms and local business are critical to the Texas economy. In a 2003 report, the Texas Comptroller noted that small businesses generate about 75% of all new jobs added to the U.S. economy, represent about 99.7% of all employers, and hire 53% of the private workforce. Further, “[d]espite the economic challenges that followed September 11, 2001, the Texas economy continued to reap benefits from its small businesses and small farms.” Texas Comptroller, Update on Community Investment in Texas (2003), http://www.window.state.tx.us/comptrol/cra03/03small.html.
 The Texas Horse Industry Quality Audit Initiative, Texas Agricultural Extension Service, Report on the Texas Horse Industry at 2 (Jan. 1998).
 Id. at 2 & 5-8.
 Id. at 2 & 18-19.