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Article: FDA and USDA sign MOU to allow USDA to exercise DPA authority in FDA-regulated facilities
22 May 2020
This article is taken from IEG Policy dated
20/05/20.
In the latest move to shield the food supply chain from impact
caused by the COVID-19 pandemic, USDA and FDA announced Tuesday
(May 19) the two agencies have signed a Memorandum of Understanding
(MOU) outlining a process to prevent interruptions at FDA-regulated
food facilities, including fruit and vegetable processing
plants.
The new agreement creates a process allowing
the two agencies to make determinations about circumstances in
which the USDA could exercise its authority under the Defense
Production Act (DPA) in domestic food facilities that manufacture,
process, pack, or hold foods, including those that grow or harvest
food that fall within the FDA's jurisdiction.
Among other facilities, the new process applies to fruit and
vegetable processing plants, which are becoming increasingly
important with the approaching peak harvesting season when many
fruits and vegetables grown across the US are sent to be frozen or
canned, USDA Under Secretary for Food Safety Mindy Brashears and
FDA Deputy Commissioner for Food Policy and Response Frank Yiannas
said in a joint statement on Tuesday (May 19).
Brashears and Yiannas were designated as liaison officers,
responsible for ensuring that the agencies carry out the terms of
the MOU agreement, which is non-binding.
"This agreement is solely for purposes of coordinating potential
use of delegated USDA DPA authorities during the COVID-19 public
health emergency," the MOU states. "It represents the broad outline
of the Parties' present intent on how they will approach the
oversight of food resource facilities and farms that are not
subject to USDA's exclusive jurisdiction and how they will approach
possible use of the DPA with regard to such entities during the
COVID-19 public health emergency."
The new agreement comes as a result of President Donald Trump's
Executive Order 13917, Delegating Authority Under the Defense
Production Act with Respect to the Food Supply Chain Resources
During the National Emergency Caused by the Outbreak of COVID-19,
which was signed at
the end of April as a way to prevent meat plant closures.
The order delegated the powers of the president under the DPA to
Secretary of Agriculture Sonny Perdue to ensure continuity of
operations for the US food supply chain, particularly with respect
to the meat and poultry industries. The order directed Perdue to
take all appropriate actions to ensure that meat and poultry
processors continue operations in a manner consistent with safety
guidances issued by the Centers for Disease Control and Prevention
(CDC) and the US Department of Labor's (DOL) Occupational Safety
and Health Administration (OSHA).
The order, however, also stated that under his new authority
Perdue may "identify additional specific food supply chain
resources that meet the criteria of section 101(b)."
The new MOU lays out how the agencies would work together should
that occur.
What's in the agreement?
For instance, it states that FDA will continue to monitor "the
integrity and adequacy" of the part of the food supply the agency
regulates and work with stakeholders involved in production or
distribution of FDA-regulated food to identify potential
disruptions. The agency will also ensure that its regulated
facilities apply appropriate CDC and OSHA safety guidances for
workers on farms and at food resource facilities. FDA will also
watch for plant closures or other possible interruptions and "upon
identifying a potential or extant disruption to the supply of
FDA-regulated food of sufficient likelihood, seriousness or
significance, contact USDA to discuss appropriate action, including
possibly invoking its delegated DPA authorities."
FDA also will be responsible for educating stakeholders about
the MOU and the "potential for use of DPA authority where necessary
or appropriate to protect the supply of FDA-regulated food," the
agreement states.
USDA, on the other hand, will "retain exclusive delegated
authority to issue DPA orders or invoke DPA authorities with regard
to food resources and domestic food resource facilities."
"Upon notification by FDA of a potential or extant disruption to
the supply of FDA-regulated food of sufficient likelihood,
seriousness or significance, consult with FDA about appropriate
action, including whether to invoke USDA's DPA delegated
authorities," the agreement states. "After consultation with FDA,
issue orders related to or utilize other delegated USDA DPA
authorities with regard to food resources and food resource
facilities."
The two agencies also agreed to work closely together and ensure
their staff continues meeting periodically to coordinate, evaluate,
and review issues related to the integrity of the food supply in
the pandemic.
"A Party will immediately notify the other Party if it is unable
to carry out any or all of its responsibilities under this MOU,"
the agreement states.
Brashears and Yiannas said they welcomed the new agreement as a
natural extension of Trump's executive order and noted that while
FDA will continue to work with state and local regulators, further
action under the DPA may follow, if necessary, to ensure the
continuity of the food supply.
"The Executive Order gave the Secretary of Agriculture the
authority to utilize the DPA if needed to require the fulfillment
of contracts at food processing facilities," the two officials
said.
The MOU, they said, clarifies that FDA will work with
stakeholders to monitor the food supply for food resources not
under the USDA's exclusive jurisdiction in order to prevent
interruptions at FDA-regulated food facilities. Additionally, FDA
will work with state, local, and public health partners, as well as
industry and other stakeholders, to "chart a path toward resuming
and/or maintaining operations while keeping employees safe,"
Brashears and Yiannas said.
"We are extremely grateful to essential workers for everything
they do every day to keep our pantries, refrigerators and freezers
stocked," the two officials said. "All of the food and agriculture
sector - whether it is regulated by the USDA or FDA - are
considered critical infrastructure, and it is vital for the public
health that they continue to operate in accordance with guidelines
from the CDC and OSHA regarding worker health and safety."
FDA, USDA stress commitment to worker
safety
The MOU is the latest in series of actions that the agencies
have taken during the pandemic to protect the food supply from
interruptions, Brashears and Yiannas said, stressing that the
agencies are committed to ensuring the safety of workers and
continue to seek ways to support the food industry and its
employees.
"Our nation's food and agriculture facilities and workers play
an integral role in the continuity of our food supply chain," the
two officials said. "The USDA and FDA have been working to ensure
that frontline workers in food facilities and retailers that have
remained on the job during this crisis have the information and
resources they need for business continuity and to continue working
safely, which includes mitigating the risk of spreading
COVID-19."
As one way to support industry, both FDA and USDA have continued
to post information about COVID-19-related challenges and to update
frequently asked questions on both agencies' websites. The agencies
will also continue to work with plants and farms to ensure they are
implementing appropriate guidelines to ensure worker safety.
The agencies are also working closely with federal partners to
develop information on protecting worker health and are also
working to address shortages of personal protective equipment
(PPE), such as cloth face coverings, disinfectants and sanitation
supplies, Brashears and Yiannas said.
The agencies have also been looking closely for potential food
supply interruptions and shortages and have issued guidances that
make it easier to safely "reroute food that typically would be
bought in bulk by food facilities and restaurants, like eggs and
flour, directly to consumers," the officials noted.
Stressing again that there has been no evidence that COVID-19
has been transmitted by food or food packaging, the two officials
also noted the two agencies have not shifted their focus away from
food safety and "continue to use their respective authorities,
including conducting inspections, as appropriate."
"The agencies also continue to monitor foods for hazards, work
with industry on any potential or reported issues in their
facilities, and conduct food recalls when appropriate," Brashears
and Yiannas said. "This applies to both domestically produced food
and food that is imported from other countries."
With respect to foodborne pathogens, CDC, FDA and FSIS continue
to investigate foodborne illness and outbreaks, the two officials
stressed. "[W]e will continue to operate to prepare for, coordinate
and carry out response activities to incidents of foodborne illness
in both human and animal food," Brashears and Yiannas said.
NFI welcomes MOU
At least one industry group, the National Fisheries Institute
(NFI) welcomed the agreement.
"Recognizing that the FDA draws its jurisdiction from the
Federal Food, Drug, and Cosmetic Act and the USDA regulates via the
Federal Meat Inspection Act, it is more important than ever to have
these vital agencies communicating and collaborating," NFI said May
20.
Though the seafood supply chain has not experienced shortages,
NFI thanked the agencies for planning ahead.
"NFI members are taking the needed steps to keep our essential
workers safe and continuing to provide consumers with healthy
seafood," the group said. "This memorandum of understanding will
benefit frontline food safety and help avoid interruptions that
might unnecessarily disrupt seafood production."