By Gary Jay Kushner
Regulatory reform-"reinventing government," if you will-continues at FSIS. The agency sent a New Year's greeting to the meat industry in the form of a package of proposed and final regulations, and a long-awaited advance notice of proposed rule-making, published in the Federal Register.
Among these initiatives were proposals to eliminate FSIS approval for substances used in meat and poultry products already permitted by FDA, and to facilitate the development and marketing of reduced fat versions of standardized foods, as well as a final rule intended to streamline prior approval of labels.
The intended direction of these reforms is to eliminate regulations that unnecessarily and unproductively burden both industry and government.
Although there is certainly room for improvement in the form and content of the various proposals-in some cases, some serious deficiencies will have to be addressed-they represent significant steps in the right direction for which the agency deserves praise.
The 60-day comment periods accompanying these proposals-the final rule is final-will provide ample opportunity for industry input in this regard.
The advance notice of proposed rule-making issued as part of the Dec. 29 package offers particular promise for meaningful, long-term reform in the meat and poultry regulatory scheme.
For this reason, it demands extra careful review, consideration and response.
Although its broad generality and lack of specificity may well be cause for criticism-some cynics (and there are lots of us) might even suggest that the advance notice of proposed rule-making is just more of the Clinton administration's lip service to reform-there is little to lose in taking FSIS at its word and responding constructively to its solicitation of comments on how the process can be made more efficient.
"FSIS Agenda for Change: Regulatory Review," outlines the agency's regulatory reform strategy to improve food safety, make better use of increasingly scarce resources, and eliminate or revise unnecessary or obsolete regulatory requirement.
To foster focused dialogue, it lists a series of current rules that FSIS considers to be candidates for modification or elimination. That's only the beginning.
The advance notice of proposed rule-making seems to be an open invitation for suggestions on regulatory overhaul, whether directed at inspection, product approval, labeling, procedural, or other requirements.
Not surprisingly, the little specificity there is in the advance notice of proposed rule-making focuses largely on the need to coordinate the regulatory review effort with the agency's Hazard Analysis and Critical Control Point program proposal, which is still pending. (The latest prediction is for publication in March.)
Much of the discussion attempts to lay a foundation for the agency's perception that "food safety performance standards" are needed to determine whether a HACCP plan is "working effectively to achieve an acceptable level of food safety performance."
In support of this concept, the advance notice of proposed rule-making lists several examples of currently applicable standards, such as limitations on chemical food additives and pesticide residues, as well as the zero-tolerance standards for pathogens and microorganisms on cooked and ready-to-eat meat and poultry products.
Comment is invited
The advance notice of proposed rule-making explains that FSIS is "now moving for the first time toward performance standards for pathogenic microorganisms on raw products," which is consistent with HACCP.
Finally, the advance notice of proposed rule-making specifically solicits comments on the agency's paperwork and record-keeping requirements, and recommendations concerning eliminating, simplifying or otherwise changing information collection requirements.
FSIS asks specifically whether there are duplicative or redundant requirements, or FSIS requirements that overlap those of other agencies than can be consolidated or deleted.
In short, although very broad-perhaps too broad to have short-term practical application-the advance notice of proposed rule-making touches upon fundamental components of the meat inspection system, as well as some of its more controversial aspects.
Regardless of the agency's "agenda" in issuing it, the industry will be making a serious mistake-and maybe even overlooking a rare opportunity to go on the record in the context of an FSIS initiated rule-making effort-if thoughtful comments are not submitted.
Think of this as a chance to tell the agency how it can better do its job, and reduce the burdens of over-regulation at a time when those objections are "politically correct."
Gary Jay Kushner is a partner in the Washington, D.C., law firm of Hogan & Hartson where he specializes in food and agriculture law,