[Federal Register: April 16, 2003 (Volume 68, Number 73)]
[Notices]
[Page 18593-18596]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap03-26]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
[Docket No. 01-040N]
Announcement of and Request for Comment on FSIS' Tentative
Determinations on the Availability of Salmonella Test Results
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice and request for comments.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is announcing
its intention to make publicly available the results of its testing for
Salmonella on livestock and poultry carcasses and in raw ground meat
and poultry products. The Agency also intends to post the results of
all completed sampling sets on its Web site. FSIS conducts the
Salmonella testing as part of its Hazard Analysis and Critical Control
Point (HACCP) verification activities. FSIS is acting in response to a
petition submitted by the Center for Science in the Public Interest,
suggestions made by meat and poultry processors, and suggestions made
by the National Advisory Committee on Microbiological Criteria for
Foods (NACMCF).
DATES: Comments must be received on or before May 16, 2003.
ADDRESSES: Please submit one original and two copies of written
comments to the FSIS Docket Room, Docket No. 01-040N, U.S. Department
of Agriculture, Food Safety and Inspection Service, Room 112 Cotton
Annex, 300 12th Street, SW., Washington, DC 20250-3700. Comments may
also be submitted via facsimile at (202) 205-0381. All comments
received in response to this notice will be considered part of the
public record, and will be available for viewing in the FSIS Docket
Room between 8:30 a.m. and 4:30 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Daniel Engeljohn, Ph.D, Acting
Assistant Deputy Administrator for Policy Analysis and Formulation,
Office of Policy and Program Development, Food Safety and Inspection
Service, U.S. Department of Agriculture, Washington, DC 20250-3700;
(202) 205-0495.
SUPPLEMENTARY INFORMATION:
Introduction
On July 25, 1996, FSIS published a final rule in the Federal
Register entitled, ``Pathogen Reduction; Hazard Analysis and Critical
Control Point (PR/HACCP) Systems'' (61 FR 38806). This rule
established, among other things, pathogen reduction performance
standards for Salmonella that establishments slaughtering livestock and
poultry and producing raw ground meat and poultry products must meet.
FSIS conducts an ongoing testing program to determine compliance with
these Salmonella performance standards for classes of livestock and
poultry products.
FSIS has received a petition from the Center for Science in the
Public Interest (CSPI) requesting that FSIS post on its website all
plant-specific test results for Salmonella in carcasses and raw ground
meat and poultry products, and that FSIS post such test results in a
timely and relevant manner as they become available. CSPI contends that
consumers could use plant-specific Salmonella results posted on the
FSIS website to determine whether individual establishments are meeting
the Salmonella performance standard and could make informed purchasing
decisions on the basis of that information.
In addition, numerous establishments and industry associations have
advised the Agency that it would be very valuable for them to receive
the results of each sample as the Agency finishes its analysis during
the course of a Salmonella set. Timely receipt of this information, the
establishments say, will enable them to more readily associate the
results with the conditions in their plants at the time the samples
were taken and will facilitate corrections and improvements in their
operations.
FSIS has determined that, if it makes the results available to
establishments on a sample-by-sample basis, the agency will not be able
to protect the confidentiality of the results until the conclusion of
the collection and testing of full sample sets, as is currently the
case. The industry representatives have stated that the opportunities
created by having the results available on a timely basis outweigh any
disadvantages of the information being publicly available. The NACMCF
has expressed similar views.
Based on its consideration of the petition, the NACMCF's
recommendation, and its contacts with industry, FSIS is announcing its
intention to modify its handling of Salmonella testing results. The
Agency requests comment on its plans.
Background
The Salmonella Performance Standards for Raw Meat and Poultry
In 9 CFR 310.25(b) and 381.94(b), FSIS has set out performance
standards for the prevalence of Salmonella in livestock and poultry
carcasses and raw ground meat and poultry products. FSIS samples and
tests raw meat and poultry products in individual establishments to
determine the prevalence of Salmonella in the products and to determine
compliance with the Salmonella performance standards.
Prior to December 2001, FSIS used the sample results to directly
enforce the performance standards in 9 CFR 310.25(b)(iii)(3) and
381.94(b)(iii)(3). These regulations state that failure to meet the
performance standard in three consecutives tests ``constitutes failure
to maintain sanitary conditions and failure to maintain an adequate
HACCP plan.'' The Agency stated that it would suspend inspection as a
result of such a failure because it would not be able to find that the
product of an establishment that had failed three sets in a row was not
adulterated.
A decision in early December 2001 by the U.S. Court of Appeals for
the Fifth Circuit in Supreme Beef Processors, Inc. v. USDA, however,
limited FSIS' ability to directly enforce the Salmonella performance
standards in grinding operations. Based on the court's decision, a
grinding operation's failure to meet a Salmonella performance standard
is not in and of itself a noncompliance. However, the failure may be an
indicator of noncompliances in aspects of the establishment's total
food safety program, such as Sanitation Standard Operating Procedures
(Sanitation SOPs) and HACCP plans. Thus, FSIS now uses sample set
failures as an indication that there is something wrong in the
establishment's HACCP system, and that the system needs to be carefully
evaluated by the Agency. However, FSIS does not initiate enforcement
actions based on individual Salmonella testing results. In addition to
the Salmonella set failures, FSIS uses other pertinent information in
its evaluation of an establishment's HACCP system. This information
includes, but is not limited to, summary reports compiled from the
evaluations of reviews of the establishment's SSOPs, prerequisite and
good manufacturing programs, and HACCP plans by the consumer safety
officer or food safety assessment team; documentation of observations
and verification activities of in-plant inspection personnel; and
generic E. coli and other microbial test results.
Public Release of Test Results and the Freedom of Information Act
The Agency held public meetings on March 6 and December 16, 1997,
to inform industry constituents and consumer advocates that FSIS would
send individual establishments the results of testing on their own
product upon completion of the full sample sets, and that plant-
specific results would be released to the public in accordance with the
provisions of the Freedom of Information Act (FOIA) (5 U.S.C. Sec.
552).\1\ At the December 16, 1997, public meeting, FSIS presented an
issue paper entitled, ``Public Release of Salmonella Testing Results,''
which outlined the Agency's position.\2\ On April 2, 1998, FSIS
published this issue paper in the Federal Register (63 FR 16245).\3\ In
this paper, FSIS stated that it planned to ``publish annually a report
on the Salmonella testing program.'' Since then, FSIS has made the
Agency's Salmonella test results available on the Web site through a
progress report: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fsis.usda.gov/FOIA/popular.htm. In this
report, FSIS provides Salmonella testing results on an aggregate basis
for large, small, and very small plants; the percent of products that
have tested positive for Salmonella; and the prevalence of Salmonella
with each product category. Prevalence, for the purposes of the FSIS
HACCP verification activity, is not a statistical representation of the
true presence of Salmonella in product. FSIS conducts statistically-
based baseline studies to determine the true prevalence of microorganisms, including
Salmonella.
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\1\ Transcript of Proceedings, HACCP Implementation Meeting;
Washington, DC, December 16, 1997, page 152-153. This document is
available for review in the FSIS Docket Room Monday through Friday
from 8:30 a.m. until 4:30 p.m. The document may also be accessed via
the World Wide Web at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.fsis.usda.gov/FOIA/popular.htm as a
related document under the Notices and Directives, and Federal
Register Publications section. Transcript of Proceedings,
Publication of Salmonella Testing Data; Washington, DC, March 6,
1997, page 3. This document is also available for review in the FSIS
Docket Room Monday through Friday from 8:30 a.m. until 4:30 p.m.
This document may also be accessed via the World Wide Web at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.fsis.usda.gov/FOIA/popular.htm as a related document under the
Notices and Directives, and Federal Register Publications section.
\2\ Transcript of Proceedings, HACCP Implementation Meeting;
December 16, 1997, Washington, DC, page 151-153.
\3\ Notice, Pathogen Reduction Performance Standards: Salmonella
Testing Data, 63 FR 16243-16245, April 2, 1998. This document is
available for review in the FSIS Docket Room Monday through Friday
from 8:30 a.m. until 4:30 p.m. This document may also be accessed
via the World Wide Web at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.fsis.usda.gov/FOIA/popular.htm under
the Notices and Directives, and Federal Register Publications
section.
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FSIS has considered the Salmonella test results as information for
use by the Agency in its deliberative process on how best to proceed
with respect to the establishment involved. Predecisional information
can be exempted from disclosure under the FOIA (5 U.S.C. 552(b)(5)).
Accordingly, FSIS has not disclosed plant-specific testing results
until the set was complete.
The FOIA requires that federal agencies make certain information
that is released under the FOIA available to the public in electronic
format and by computer telecommunications (5 U.S.C. 552(a)(2)). In
response to legislative amendments to the FOIA (E-FOIA), on July 28,
2000, the U.S. Department of Agriculture published a final rule, ``USDA
Freedom of Information Act Regulations'' (65 FR 46335), in which the
Department adopted regulations governing the electronic release of
information requested under FOIA. Significant in consideration of the
CSPI petition is that these regulations provide that one reason to
release information requested under FOIA electronically is that ``it
has become or is likely to become the subject of subsequent requests
for substantially the same records.'' Salmonella testing results have
been, and continue to be, requested in significant numbers.
Recommendations From the National Advisory Committee on Microbiological
Criteria for Foods
On October 8, 2002, the National Advisory Committee on
Microbiological Criteria for Foods (NACMCF) made final a report that
recommended that the data from the Salmonella performance standard
program be made public, so as to provide guidance to industry in order
that commercial operations may assess their process control.\4\ The
Committee points out that, when HACCP systems and other prerequisite
programs in ground beef operations are adequate and verified, the
measurement of Salmonella reflects the total process control,
particularly the microbial conditions of raw material. The report also
states that the information would be helpful in meeting the Salmonella
performance standards. In addition, the report recommends that the
Salmonella test results be made available to each establishment as they
become available to facilitate Continuous Improvement Programs.
Finally, the report states that making Salmonella data that is suitably
codified to protect proprietary information available to the public, to
the extent possible, should lead to generation of additional data and
increased knowledge of the many facets influencing control of enteric
pathogens on raw meat and poultry.
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\4\ Final Response, NACMCF Final Response to the Questions Posed
by FSIS regarding Performance Standards with Particular Reference to
Ground Beef Products, Washington, DC, October 8, 2002. This document
is available for review in the FSIS Docket Room Monday through
Friday from 8:30 a.m. until 4:30 p.m. This document may also be
accessed via the World Wide Web at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.fsis.usda.gov/FOIA/popular.htm
.
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The CSPI Petition
As mentioned above, FSIS received a petition dated October 1, 2001,
from CSPI requesting that FSIS post on its website all plant-specific
test results for Salmonella in carcasses and raw ground meat and
poultry products, and that FSIS continue to post such test results in a
timely and relevant manner as they become available. According to CSPI,
consumers could use plant-specific Salmonella results posted on the
FSIS website to determine whether individual establishments are meeting
the Salmonella performance standard and could make informed purchasing
decisions on the basis of that information.
The petition states that the presence of Salmonella positives above
the performance standard is an indication that the plant's system for
controlling contamination is not working. Therefore, according to CSPI,
posting the individual establishment test results on the web would
encourage establishments to improve their sanitation procedures because
consumers would be less likely to purchase products made by facilities
that repeatedly exceed standards. Additionally, the petition states
that posting test results on the FSIS Web site could benefit Federal
and state health officials in their efforts to track the cause of food
poisoning outbreaks and to identify contamination trends based on
product type, plant geographical location, and seasonality. The
petition also states that posting plant-specific Salmonella test
results on the FSIS Web site would be consistent with the USDA's
implementing regulations for FOIA. Quoting a House of Representatives
report, the petitioner states that one of the purposes of the FOIA
provisions requiring electronic release of information is to improve
public access to agency records and information.
Industry and Consumer Advocate Comments and Concerns
Before and during the March 6, 1997, public meeting referred to
above, many industry representatives raised concerns regarding posting
Salmonella testing results on the World Wide Web. Some of their
concerns were based on the assumption that foreign countries who do not
monitor their own products, nor have equivalent process controls
established to determine whether Salmonella is present on meat and
poultry products, could use the Salmonella data to discriminate against
U.S. product. They argued that use of the data could lead to the
following results: (1) A negative impact on U.S. companies' efforts to
secure markets and fair prices internationally; (2) use of the data by
foreign governments as a pretext for imposing non-tariff barriers
against U.S. product and to protect their own domestic industry; and
(3) discrimination against specific U.S. products and establishments by
foreign buyers if an establishment received positive Salmonella test
results. In addition, they stated that the context in which the
Salmonella testing results would be presented would also have an impact
on the aforementioned effects.
At the same public meeting, consumer advocates favored publication
of plant-specific Salmonella data along with the plant name, location,
and product line.\5\ They stated that progressive companies would want
the results of their Salmonella tests known, and that the public is
sophisticated enough to accept the fact that there are going to be
positive Salmonella test results on some raw product.\6\
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\5\ Transcript of Proceedings, Publication of Salmonella Testing
Data; Washington, DC, March 6, 1997, page 75.
\6\ Transcript of Proceedings, Publication of Salmonella Testing
Data; Washington, DC, March 6, 1997, pages 70-72.
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On the other hand, during the December 16, 1997, meeting, an
industry representative opined that, ``it would be beneficial for
plants to have the Salmonella data as it was collected so if a trend
was developing, the plant could take some corrective action before the
whole series was out.''\7\
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\7\ Transcript of Proceedings, HACCP Implementation Meeting;
December 16, 1997, Washington, DC, page 153.
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In the five years that have followed, the concerns expressed by
industry about foreign reaction to specific Salmonella results have not
materialized. However, through numerous informal communications and at
scheduled meetings, the Agency has received industry input that
correlates with the last comment cited and with the NACMCF's
recommendations.
[[Page 18596]]
Availability of FSIS' Salmonella Testing Program's Results
FSIS now agrees with CSPI and NACMCF that release of the Salmonella
data as sample results are obtained, rather than at the completion of a
full sample set, could lead to the generation of data and information
that could be used to sort out which, if any, of the many factors that
could influence control of enteric pathogens on raw meat and poultry is
actually doing so. FSIS also agrees that providing Salmonella data to
industry as test results are obtained will allow commercial operations
to assess their process control more effectively.
Tentative Determinations
In light of the foregoing, FSIS intends to release Salmonella
testing results to individual establishments as they become available
and before the conclusion of the collection and testing of full sample
sets. Receiving this information in this way should allow
establishments to more readily identify their process control
deficiencies and assess the relative efficacy of their process
controls.
The Office of Public Health and Science (OPHS), Laboratory Sample
Data Management Staff (LSDMS), has developed a double-folded mechanism
to forward Salmonella testing results to individual establishments as
they become available. First, all Salmonella testing results will be
available via FSIS' Laboratory Electronic Application for Results
Notification (LEARN) system. By maneuvering through the components of
this electronic program, an inspector can copy the applicable page and
forward it to an establishment's management official as
``notification'' as instructed by the contents of the LEARN directive--
10,200.1. In addition, an establishment can elect to provide OPHS,
LSDMS, with an e-mail address, and the establishment's Salmonella
testing results will be e-mailed to them as they are entered into its
internal database. If an individual requests Salmonella testing data
for an establishment, FSIS intends to respond to the request in turn,
generally providing the specific existent information requested. Once a
sample set is concluded, FSIS will post the results on its Web site on
an aggregate basis (e.g., results will be identifiable only by the
establishments' state and district locations). As sample sets continue
to be collected and tested, FSIS will regularly update the content of
the postings (e.g., by season or quarter) throughout the year. FSIS
will not make the establishments' sample-by-sample results available on
its Web site because the Agency is not convinced of the value of
posting this information. While the value of this information to the
tested establishment is clear, the value to the general public is not.
FSIS can see the value to the general public of more frequent posting
of information about trends in Salmonella testing results than the
current annual reports that the Agency issues.
Request for Comment
FSIS is seeking comment on its plan to modify its handling of
Salmonella testing results. The Agency's final decision regarding the
availability of Salmonella testing results will be published in the
Federal Register.
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, in an effort to better ensure
that minorities, women, and persons with disabilities are aware of this
notice, FSIS will announce it and make copies of this Federal Register
publication available through the FSIS Constituent Update. FSIS
provides a weekly Constituent Update, which is communicated via
Listserv, a free e-mail subscription service. In addition, the update
is available on-line through the FSIS web page located at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fsis.usda.gov.
The update is used to provide information regarding
FSIS policies, procedures, regulations, Federal Register notices, FSIS
public meetings, recalls, and any other types of information that could
affect or would be of interest to our constituents/stakeholders. The
constituent Listserv consists of industry, trade, and farm groups,
consumer interest groups, allied health professionals, scientific
professionals, and other individuals that have requested to be
included. Through the Listserv and web page, FSIS is able to provide
information to a much broader, more diverse audience.
For more information contact the Congressional and Public Affairs
Office, at (202) 720-9113. To be added to the free e-mail subscription
service (Listserv) go to the ``Constituent Update'' page on the FSIS
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fsis.usda.gov/oa/update/update.htm. Click on the
``Subscribe to the Constituent Update Listserv'' link, then fill out
and submit the form.
Done at Washington, DC, on April 7, 2003.
Dr. Garry L. McKee,
Administrator.
[FR Doc. 03-8971 Filed 4-15-03; 8:45 am]