The USDA Food Safety and Inspection Service’s responses to the poultry industry’s recommendations on the new young chicken and turkey Salmonella and Campylobacter performance standards are disappointing. The agency’s positions are in the March 21 Federal Register (Docket Number FSIS–2010–0029), which is a response to public comments concerning Docket Number FSIS-2009-0034, previously published in May of 2010. This FR notice details the agency’s new young chicken and turkey Salmonella and Campylobacter performance standards scheduled for implementation in July.
Drop category designations, recommends industry
The FSIS accepted few industry recommendations offered in response to the previous notice. The industry asserted that the agency need no longer use its Salmonella performance category designations to define the status of, or inform their regulatory decision-making with respect to, establishments and testing of the larger of the two previously proposed Campylobacter sample portions (i.e. 30 ml for chickens, and 24 ml for turkeys).
In rejecting the industry’s recommendation about performance categories, FSIS decided on the following policy:
- post only Category 3 young chicken and turkey establishments on its website
- maintain use of Category 1 and 2 for “internal analysis” and quarterly aggregate reporting
- use test results from only the 1 ml Campylobacter samples for tracking and reporting establishment performance
- gather data from the 30 and 24 ml samples for “internal analysis.”
FSIS ignores APA, says industry
It was disappointing to see the FSIS simply dismiss the two most significant industry objections to the previous FR notice. In response to criticism that the agency was attempting to establish significant new regulatory policy without using notice-and-comment rulemaking, as is required by the Administrative Procedure Act, the FSIS asserted the new performance standards, and associated testing processes, do not “impose requirements on establishments.”
Although this FR notice does not mandate industry testing, it is unrealistic to suggest that establishments will not voluntarily test (as they do now) to assure they will comply with these standards when the agency performs verification sampling. Furthermore, it is difficult to see how such testing will not become mandatory when the FSIS fully implements the Salmonella Initiative Program.
As additional justification in support of its approach, FSIS listed several previous instances when it established regulatory policy in a similar manner, as if to say the more it disregards the APA, the more permissible it is to do so.
Lack of attribution data
The poultry industry previously commented that the agency had not offered substantive data to support the reductions in human illness they claim would result from implementation of these new performance standards. In response, the FSIS (correctly) asserted it would be inappropriate to compare trends in post-chill Salmonella incidence to Centers for Disease Control and Prevention human salmonellosis rates in an attempt to infer what impact a reduction in such incidence might have on said rates. Despite this, the agency (in Appendix I of the notice) used estimates of the reduction of Salmonella incidence it believed would result from industry compliance with the new performance standards to arrive at projections of the number of illnesses that would be averted. Then, as if to shift attention away from the lack of attribution data to support the hypothetical benefit to the consumer, the FSIS simply concluded that “Salmonella occurrence in poultry has the potential to cause salmonellosis in humans,” a fact that was never in doubt.
The lesser of two bad choices
It is not easy to suggest the industry respond to this FR notice in a way that may dampen the fires of agency/industry collaboration that have, of late, seemingly been stoked. However, as rights not exercised eventually cease to exist, it is more difficult to allow the FSIS to again sidestep the APA and effectively enact new, stricter regulatory requirements that are no more based in sound science than were their predecessors, and have an equally slim chance of making consumers any safer. Regrettably, the agency’s new Salmonella and Campylobacter performance standards require the industry to choose one of these two undesirable options.