[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Rules and Regulations]
[Pages 30773-30775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10885]


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DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 355

[Docket No. FSIS-2020-0013]
RIN 0583-AD83


Removal of 9 CFR 355--Certified Products for Dogs, Cats, and 
Other Carnivora; Inspection, Certification, and Identification as to 
Class, Quality, Quantity, and Condition

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending its 
regulations to end the program under which FSIS inspectors provide fee-
for-service certification that certain foods for dogs, cats and other 
carnivora (pet food) are produced under sanitary conditions and meet 
compositional and labeling requirements. The certified pet food 
regulations are outdated, and no firms are paying for FSIS 
certification services for pet food. Further, the fact that both the 
United States Department of Agriculture (USDA) and the U.S. Food and 
Drug Administration (FDA) maintain regulations concerning pet food has 
led to industry and consumer confusion. Both agencies agreed that 
stakeholders will benefit from the simplification of Federal 
jurisdiction over pet food.

DATES: Effective July 19, 2022.

FOR FURTHER INFORMATION CONTACT: Rachel Edelstein, Assistant 
Administrator, Office of Policy and Program Development by telephone at 
(202) 205-0495.

SUPPLEMENTARY INFORMATION:

Background

    On July 28, 2021, FSIS proposed to remove the certified pet food 
provisions (9 CFR part 355) from the regulations because they are 
outdated and no companies use the voluntary service. In addition, 
because FDA also maintains regulations concerning pet food, the FSIS 
regulations have led to industry and consumer confusion (86 FR 40369).
    As FSIS explained in the proposed rule, under the Federal Food, 
Drug, and Cosmetic Act (FFDCA), FDA is responsible for ensuring that 
pet food is safe for animals, produced under sanitary conditions, 
contains no harmful substances, and is truthfully labeled. FDA has had 
authority to regulate pet food since the FFDCA was passed in 1938. FDA 
does not charge pet food producers a fee for any FDA activities related 
to pet food. Individual States also regulate and inspect pet food, 
which also minimizes the need for FSIS's program.
    Since 1958, under the Agricultural Marketing Act (7 U.S.C. 
1622(h)), USDA also provided for the voluntary certification of pet 
food as having been produced under sanitary conditions and meeting 
compositional and labeling requirements. Under the regulations at 9 CFR 
part 355, participating facilities pay for this certification. The 
regulations governing FSIS certification services for pet food have not 
been substantively amended since the 1960s; therefore, the requirements 
are outdated (e.g., requirements regarding pet food ingredients and the 
submission of firm blueprints). Additionally, the regulations allow for 
certification of

[[Page 30774]]

only certain categories of pet food (i.e., canned or semi-moist 
maintenance food, canned or fresh frozen certified supplemental animal 
foods, and canned certified variety meats). Many types of pet foods 
that were developed in the last few decades are thus not eligible for 
FSIS certification (e.g., pet jerky, pet treats, pet rawhides, raw pet 
food, freeze-dried pet food, and prescription pet food). Likely for 
these reasons, no firms are participating in the FSIS certified pet 
food program.
    After considering the comments received on the proposed rule, 
discussed below, FSIS is finalizing the proposed rule without changes.

Summary of Comments and Responses

    FSIS received 149 comments on the proposed rule from individuals 
and pet food industry groups. Below is a summary of the comments 
received and FSIS' responses.
    Comments: FSIS received comments from several individuals and two 
industry groups that supported the removal of 9 CFR part 355. These 
commenters agreed that FSIS' voluntary pet food certification program 
is outdated and that having pet food under the jurisdiction of a single 
Federal agency will eliminate confusion by pet food consumers and 
manufacturers.
    FSIS also received comments from pet food buyers and an industry 
group stating that FSIS should update its certified pet food program 
instead of removing it. The commenters suggested rewriting the 
regulation to remove obsolete references and updating the language to 
reflect more modern types of pet food.
    Response: FSIS is not updating its certified pet food program 
because it would not be the best use of Agency resources. As noted 
above, no companies are currently participating in the FSIS certified 
pet food program, and FDA is responsible for ensuring that pet food is 
safe for animals, produced under sanitary conditions, contains no 
harmful substances, and is truthfully labeled.
    Comments: Several individuals argued that FSIS should not remove 
its certified pet food program because they disagree with FDA's pet 
food inspection regulations. These individuals stated that FSIS' 
requirements are stricter than FDA's requirements.
    Response: This final rule will not impact the safety of pet food 
products. As explained above and in the proposed rule (86 FR 40369), no 
firms are participating in FSIS' certified pet food program. Comments 
on FDA's regulation of pet food are outside the scope of this 
rulemaking.

Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This final rule has been designated as a ``non-significant'' regulatory 
action under section 3(f) of E.O. 12866. Accordingly, the rule has not 
been reviewed by the Office of Management and Budget (OMB) under E.O. 
12866.

Expected Costs and Benefits of the Final Rule

    This final rule clarifies that FDA has sole jurisdiction over pet 
food inspection, which benefits industry and consumers by reducing 
confusion. No firms are participating in the FSIS certified pet food 
program. Therefore, the final rule will not increase industry or Agency 
costs or have a negative impact on public health.

Regulatory Flexibility Act Assessment

    The FSIS Administrator certifies that, for the purposes of the 
Regulatory Flexibility Act (5 U.S.C. 601-602), this final rule is not 
expected to increase costs to industry.

Paperwork Reduction Act

    There are no new paperwork or recordkeeping requirements associated 
with this final rule under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520).

Executive Order 13175

    This proposed rule will have no implications for Indian Tribal 
governments. More specifically, it does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes. 
Therefore, the consultation requirements of Executive Order 13175 do 
not apply.

Environmental Impact

    Pursuant to the National Environmental Policy Act (42 U.S.C. 4321, 
et seq.) (NEPA), Federal agencies must prepare an environmental impact 
statement (EIS) for any ``major Federal actions significantly affecting 
the quality of the human environment'' (42 U.S.C. 4332(2)(C)). NEPA 
established the Council on Environmental Quality (CEQ), which 
promulgated regulations (40 CFR parts 1501-1508) to govern NEPA 
compliance. When a major Federal action is unlikely to have significant 
environmental effects or the significance of the effects is unknown, 
the Agency may prepare an environmental assessment (EA) (40 CFR 
1501.3(a)(2), 1501.5) (2020). Federal agencies also may identify 
classes of actions that normally do not have significant environmental 
effects and therefore do require the preparation of either an EA or EIS 
(40 CFR 1501.4(a)). Such classes of actions are ``categorically 
excluded'' from NEPA review unless extraordinary circumstances exist in 
which a normally excluded action may have a significant environmental 
effect (40 CFR 1501.3(a)(1), 1501.4)).
    USDA's NEPA implementing regulations establish a categorical 
exclusion for specified categories of actions and the actions of 
certain USDA agencies and agency units (7 CFR 1b.3, 1b.4). USDA has 
determined that the listed agencies, including FSIS (7 CFR 1b.4(b)(6)), 
``conduct programs and activities that have been found to have no 
individual or cumulative effect on the human environment'' (7 CFR 
1b.4(a)). Accordingly, all FSIS actions are categorically excluded from 
preparation of an EA or EIS unless the Agency head determines that a 
particular action may have a significant environmental effect (Id.). 
The action thus is categorically excluded unless FSIS anticipates that 
extraordinary circumstances from ending the certification program may 
have a significant environmental effect (7 CFR 1501.4(b)). This final 
rule, which removes 9 CFR 355 from the Code of Federal Regulations, 
will not create any extraordinary circumstances that will result in 
this normally excluded action having a significant effect on the human 
environment. Therefore, this action is appropriately subject to the 
categorical exclusion from the preparation of an environmental 
assessment or environmental impact statement provided under 7 CFR 1b.4 
of the USDA regulations.

Executive Order 12988, Civil Justice Reform

    This final rule has been reviewed under E.O. 12988, Civil Justice 
Reform. Under this rule: (1) All State and local laws and regulations 
that are inconsistent with this rule will be preempted; (2) no 
retroactive effect will

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be given to this rule; and (3) no administrative proceedings will be 
required before parties may file suit in court challenging this rule.

E-Government Act

    FSIS and USDA are committed to achieving the purpose of the E-
Government Act (44 U.S.C. 3601, et seq.) by, among other things, 
promoting the use of the internet and other information technologies 
and providing increased opportunities for citizens access to Government 
information and services, and for other purposes.

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, FSIS will announce this Federal 
Register publication on-line through the FSIS website located at: 
https://www.fsis.usda.gov/policy/federal-register-rulemaking.
    FSIS also will make copies of this publication available through 
the FSIS Constituent Update, which is used to provide information 
regarding FSIS policies, procedures, regulations, Federal Register 
notices, FSIS public meetings, and other types of information that 
could affect or would be of interest to our constituents and 
stakeholders. The Constituent Update is available on the FSIS website. 
Through the website, FSIS is able to provide information to a much 
broader, more diverse audience. In addition, FSIS offers an email 
subscription service which provides automatic and customized access to 
selected food safety news and information. This service is available 
at: https://www.fsis.usda.gov/subscribe. Options range from recalls to 
export information, regulations, directives, and notices. Customers can 
add or delete subscriptions themselves and have the option to password 
protect their accounts.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs has determined that 
this rule is not a ``major rule,'' as defined by 5 U.S.C. 804(2).

USDA Non-Discrimination Statement

    In accordance with Federal civil rights law and USDA civil rights 
regulations and policies, the USDA, its Agencies, offices, and 
employees, and institutions participating in or administering USDA 
programs are prohibited from discriminating based on race, color, 
national origin, religion, sex, gender identity (including gender 
expression), sexual orientation, disability, age, marital status, 
family/parental status, income derived from a public assistance 
program, political beliefs, or reprisal or retaliation for prior civil 
rights activity, in any program or activity conducted or funded by USDA 
(not all bases apply to all programs). Remedies and complaint filing 
deadlines vary by program or incident.
    Persons with disabilities who require alternative means of 
communication for program information (e.g., Braille, large print, 
audiotape, American Sign Language, etc.) should contact the responsible 
Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or 
contact USDA through the Federal Relay Service at (800) 877-8339. 
Additionally, program information may be made available in languages 
other than English.
    To file a program discrimination complaint, complete the USDA 
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and 
at any USDA office or write a letter addressed to USDA and provide in 
the letter all of the information requested in the form. To request a 
copy of the complaint form, call (866) 632-9992. Submit your completed 
form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, 
Office of the Assistant Secretary for Civil Rights, 1400 Independence 
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) 
email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

List of Subjects in 9 CFR Part 355

    Animal foods, Certified pet food, Labeling, Meat inspection, 
Packaging and containers, Reporting and recordkeeping.

PART 355--[REMOVED AND RESERVED]

0
For the reasons set out in the preamble, and under the authority of 7 
U.S.C. 1622, 1624; 7 CFR 2.17 (g) and (i), and 2.55, FSIS removes 9 CFR 
part 355.

    Done at Washington, DC.
Paul Kiecker,
Administrator.
[FR Doc. 2022-10885 Filed 5-19-22; 8:45 am]
BILLING CODE 3410-DM-P