Editor’s Note: The following is a letter to the USDA’s Assistant Secretary of State for Food Safety regarding a petition filed by several consumer groups and individuals calling on the government to make certain types of salmonella in meat and poultry illegal. As of now, companies can legally sell meat and poultry that contain the named types of salmonella, which can cause infections in humans.
Mrs. Sandra Eskin
Deputy State Secretary for Food Safety
Food safety and inspection service
331-E Jamie Whitten Federal Building.
1400 Independence Street, SW
Washington, DC 20250
U.S. Department of Agriculture
Food safety and inspection service
1400 Independence Street, SW
Mail stop 3782
Washington, DC 20250
Subject: Request a status update to resolve file no. FSIS-2020-0007; Document ID FSIS-2020-0007-0001 – Petition for an interpretative rule explaining “outbreak” serotypes of Salmonella entericasubspecies enterica To be an adulterer within the meaning of 21 USC § 601 (m) (1) and 21 USC § 453 (g) (1)
Dear Ms. Eskin:
Marler Clark LLP, PS is forwarding this letter with a request for a status update on the above file, file number FSIS-2020-0007; Document ID FSIS-2020-0007-0001 – Petition for a Interpretative Rule to Explain “Outbreak” Serotypes of Salmonella enterica subspecies enterica To be an adulterer within the meaning of 21 USC § 601 (m) (1) and 21 USC § 453 (g) (1) (hereinafter “Salmonella Petition”).
Over a year and a half ago, on January 19, 2020, Marler Clark had his Salmonella Petition on behalf of Rick Schiller, Steven Romes, the Porter Family, Food & Water Watch, Consumer Federation of America, and Consumer Reports, requesting that FSIS identify the following “outbreak serotypes” as per se Adulterants in meat and poultry products:
Salmonella Agona, Anatum, Berta, Blockely, Braenderup, Derby, Dublin, Enteritidis, Hadar, Heidelberg, I 4,, 12: i: -, Infantis, Javiana, Litchfield, Mbandaka, Mississippi, Montevideo, Munich, Newport, Oranienburg, Panama, Poona, Reading, Saintpaul, Sandiego, Schwarzengrund, Senftenberg, Stanley, Thompson, Typhi and Typhimurium.
FSIS posted that Salmonella Petition on their website shortly thereafter and during the subsequent four-month comment period, the petition received a total of 377 comments. On March 19, 2020, we wrote to the then FSIS administrator Paul Kiecker to reiterate our request for an accelerated review of the petition. On June 5, 2020, we wrote to former Food Safety Undersecretary Mindy Brashears to add additional and updated information to the petition and to address some issues and criticisms raised by comments made during the comment period, particularly those made using a Template that were addressed were circulated by the Weston A. Price Foundation. A few months ago, on March 12, 2021, we wrote to Mr. Kiecker again to request a status update regarding the FSIS response to our petition and its resolution. However, we have not yet received a clear answer as to when and how our petition will be dealt with.
FSIS is required under the Administrative Procedure Act and the courtsto at least respond to the merits of a petition for regulation. 5 USC §555 (b) requires in particular that “[w]with due regard to the convenience and necessity of the parties … and Within a reasonable period of time, each agency will close a matter submitted to it. “It is also the responsibility of the courts to force” unreasonably delayed “official measures, and in determining whether there has been an unreasonable delay, the courts are directed to examine, among other things, the risk to human health and well-being and the nature and extent of the interests affected by the delay.
While we support the efforts of the FSIS to collect information on strategies to address the significant public health burden associated with Salmonella, also through recent public meetings such as the September 22nd, 2020 of the FSIS, “SalmonellaState of Science seminar, the country’s stalled progress in reducing salmonellosis requires bold action that goes well beyond what is contained in the agency’s Roadmap to Reduction Salmonella. ” Salmonella is the leading bacterial cause of foodborne illness in the United States, causing an estimated 1.35 million illnesses, 26,500 hospital admissions, and 420 deaths, and 130 outbreaks each year  and unfortunately the burden on consumers is not easing. In 2021, the USDA’s Economic Research Service (ERS) estimated the cost of Salmonella Illnesses alone at a staggering $ 4.14 billion.
According to the Foodborne Diseases Active Surveillance Network (FoodNet), the incidence of salmonellosis in 1996 across all FoodNet locations was 14.46 cases per 100,000 population. In 2019 it was the 17th of December. New culture-independent diagnostic tests (CIDTs) may be responsible for part of the increase, but CDC researchers have made it clear that “the identification of infections that may not have been detected prior to the introduction of CIDTs cannot explain this general lack of progress “. CDC researchers further estimate that for every diagnosed and reported case of SalmonellaInfection, another 29 are not reported. Foods regulated by the FSIS are a major contributor to this public health burden; According to the Interagency Food Safety Analytics Collaboration, over a third of salmonellosis cases can be traced back to chicken (14.0%), pork (10.3%), beef (6.4%) and turkey (6.2%).
Design Salmonella Standards of service that are more focused on reducing foodborne diseases are fundamental to improving food safety. For now, Salmonella Performance standards measure how well a company reduces the frequency with which its products are positive for contamination by any. be tested Salmonella Species. FSIS verification tests can identify virulent strains of Salmonella which are related to current outbreaks, but the product can still be placed on the market as long as the company has a sufficient number of “negative” samples and otherwise complies with the rules intended to show that its operating conditions are not “unsanitary” . This indirect approach doesn’t work.
In order to protect the public, the FSIS must recognize that certain SalmonellaSerotypes pose an unacceptable risk to consumers and regulate the removal of counterfeit products contaminated with these serotypes from shelves. Accordingly, we invite you again to respond positively to our petition.
William D. Marler
cc: Mary Porretta, petition manager
Matthew Michael, director, regulation development staff
Terri Nintemann, Deputy Administrator
Food & water clock
Consumers Association of America
The Porter family
FULL PETITION – https://www.fsis.usda.gov/policy/petitions/petition-interpretive-rule-related-certain-salmonella-serotypes
 Thirty of these 31 serotypes are from the Centers for Disease Control and Prevention (CDC). Salmonella Atlas containing 42 years of laboratory-verified research. See Salmonella Atlas at https://www.cdc.gov/salmonella/reportspubs/salmonella-atlas/serotype-reports.html. The only exception, Salmonella Dublin, was added to the list of petitioners because it is a serotype of increasing public health concern that has recently been implicated in an outbreak of foodborne diseases related to ground beef.
 In addition to the requirement of 5 USC Section 553 (e) that any agency “must grant an interested person the right to request the adoption, amendment or repeal of a rule”, the Administrative Procedure Act also requires that the authorities “ prompt “notification … of the rejection in whole or in part in a written request, petition, or any other request from an interested person in connection with a regulatory proceeding “5 USC §555 (e).
 Horne versus USDA, 494 Fed. App. 774 (9th Cir. 2012) (“USDA responded to the Hornes petition – as required under the Administrative Procedure Act”); WWHT, Inc. v FCC., 656 F.2d 807, 813 (DC Cir. 1981) (“an authority must receive and answer requests for regulations”); Conserv. Ass’n v. interior, 794 F.Supp.2d 39, 44-45 (DDC 2011) (“[A]n Agency ‘has to answer at least definitively. . . [a] Petition – that is, either rejecting the petition or granting it. ‘”); Families for freedom against Napolitano, 628 F.Supp.2d 535.540 (SDNY 2009) (with the same conclusion and the note “DHS admitted this point at the oral hearing”); but see Brown v. FBI, 793 F.Supp.2d 368, 375 (DC Cir. 2011) (notes in connection with the review of the petitioner’s position that “the APA is not entirely clear with regard to the plaintiff’s legal right to reply”, whereby WWHT is quoted at the same time, “an authority must receive and respond”). See also Richard J. Pierce, Administrative Law Treatise 517 (5th ed. 2013) (“At least the right to petition for the drafting of regulations entitles an applicant party to answer the merits of the petition.”).
 In right Natural Resource Defense Council, 645 F.3d 400, 406 (DC Cir. 2011) (in application of 5 USC § 555 (b) to a petition from an FDA citizen); Fund for animals against Norton, 294 F.Supp.2d 92, 112 (DC Cir. 2003) (using 5 USC §§555 (b) and 706 (1) to review the agency’s delay in responding to a petition); Conserv. Ass’n v. Interior, 794 F.Supp.2d 39, 44-45 (DDC 2011) with reference to 5 USC §§553 (e), 555 (b) and conclude “an authority is obliged to at least finally …[a] Petition”).
 Telecommunications Research and Action Center (TRAC) v FCC, 750 F.2d 70, 80 (DC Cir. 1984); Shinnecock Indian Nation v. Kempthorne, 2008 US Dist. LEXIS 75826 (EDNY 2008) (following TRAC);
 “Salmonella Home. “CDC, 2021.
 Laufer AS, et al. (2015). Outbreaks of Salmonella Infections Attributed to Beef – USA, 1973-2011. Epidemiol infection.143 (9): 2003-13.
 “Cost Estimates of Foodborne Diseases.” ERS, 2021. https://www.ers.usda.gov/data-products/cost-estimates-of-foodborne-illnesses/
 See FoodNet Fast at https://wwwn.cdc.gov/foodnetfast/.
 Tack DM, et al. (2020). Preliminary Incidence and Trends of Frequently Foodborne Pathogens Infections – Foodborne Diseases Active Surveillance Network, 10 US Locations, 2016-2019. MMWR. 69 (17): 509-514.
 Scallan E, et al. (2011). Food-borne disease acquired in the United States – major causative agent. Emerg Infect Dis. 17 (1): 7-15.
Publisher’s Note: William Marler is the editor of Food Safety News.
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