President Biden put a key leader at USDA with the March 16 appointment of Deputy Under Secretary for Food Safety Sandra Eskin. And while she has been effective right out of the box, Eskin is not, at least not yet, the president’s appointee and Senate-confirmed USDA Under Secretary for Food Safety.

The top food safety job in the federal government, USDA’s Under Secretary for Food Safety, is often left vacant and in the hands of deputies like Eskin. Biden has now gone more than 200 days without making a top food safety appointment.

USDA’s Under Secretary for Food Safety is one of about 800 top federal jobs that are among 1,200 that require Senate confirmation. Appointments to these positions are tracked by the Partnership For Public Service in conjunction with the Washington Post.

The Biden Administration has yet to nominate anyone to serve in 246 of these priority positions, including the Under Secretary for Food Safety. It’s not unusual for a new president to take more than a year to name an Under Secretary for Food Safety.

Mindy Brashears stepped down as Under Secretary for Food Safety and returned to her research at Texas Tech University as the presidential transition was occurring. She was the fifth Senate-confirmed Under Secretary for Food Safety.

As deputy, Eskin currently leads USDA’s Office of Food Safety (OFS). She oversees the Food Safety and Inspection Service (FSIS), which has regulatory oversight for ensuring that meat, poultry, and egg products are safe, wholesome, and accurately labeled.

She came to the job not wearing a white lab coat but carrying law books. Eskin arrived at USDA from The Pew Chartable Trusts, also in Washington D.C., where she was Project Director for Food Safety for the past dozen years.

It is no surprise that recently released Public Calendars from FSIS show Eskin hit the ground running. In her first full month on the job, Eskin found herself doing telephonic meetings about the New Swine Inspection System.

That’s because her appointment coincided with USDA’s loss of line speed flexibility for the slaughter of market hogs. A federal district court in Minnesota ordered slower speeds than the industry wanted, and Secretary of Agriculture Tom Vilsack decided not to appeal the decision.

April saw Eskin meeting with unhappy meat people, including organizations like the National Turkey Federation, the North American Meat Association, Quality Pork Processors, and businesses like Triumph Foods and Wholestone Farms.

FSIS remains on COVID-19 protocols, so meetings are primarily telephonic. Most getting time with Eskin get their president and some significant members on the line with her. Lawyer-lobbyings are usually involved.

Nothing about this is new to Eskin. She served on multiple federal advisory committees about consumer information on prescription drugs, meat and poultry safety, and foodborne illness surveillance. She received her law degree from UC Hastings College of the Law and her B.A. from Brown University.

Her Public Calendar for May shows meetings with parties outside the federal government on multiple topics. Food safety education, agency updates, meet and greets for Eskin on May 20 held separate telephone conferences with industry and consumer representatives.

The New Swine Inspection System was the subject of a May 27 phone call with Wake Fluckey, vice president of technical and regulatory affairs for the Clemens Food Group.

There is a difference between a Senate-confirmed Under Secretary for Food Safety and a qualified deputy. The Secretary of Agriculture typically makes “delegations of authority” to the Under Secretary for Food Safety that helps in empowering the job.

The Under Secretary usually chairs the U.S. Codex Steering Committee, which marshals the U.S. delegation to the international Codex Alimentarius Commission.

The Department of Agriculture Reorganization Act of 1994, signed into law in October 1994, created the subcabinet post for food safety. USDA’s the trade and marketing functions have typically dominated the agency.

Previous Under Secretaries include Dr. Elisabeth Hagen (August 2010- December 2013), Richard Allen Raymond (July 2005–January 2009), Elsa A. Murano (October 2001–December 2004), and Catherine Woteki (July 1997–January 2001).

From December 1, 2004, until July 15, 2005, Merle D. Pierson was Acting Under Secretary. The then-incumbent Food Safety and Inspection Service Administrator, Mike Taylor, became the acting Under Secretary from October 1994 to November 1996.

As for those “delegations of authority,” here are some of the legal power that may pass to the Under Secretary for Food Safety:

§ 2.18 Under Secretary for Food Safety.

(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Food Safety:

(1) Related to food safety and inspection.

(i) Exercise the functions of the Secretary of Agriculture contained in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621–1627), relating to voluntary inspection of poultry and edible products thereof; voluntary inspection and certification of technical animal fat; certified products for dogs, cats, and other carnivora; voluntary inspection of rabbits and edible products thereof; and voluntary inspection and certification of edible meat and other products.

(ii) Exercise the functions of the Secretary of Agriculture contained in the following legislation:

(A) Poultry Products Inspection Act, as amended (21 U.S.C. 451–470, 472);

(B) Federal Meat Inspection Act, as amended, and related legislation, excluding so much of section 18 as pertains to issuance of certificates of condition of live animals intended and offered for export (21 U.S.C. 601–613, 615–624, 641–645, 661, 671–680, 683, 691–692, 694–695);

(C) Egg Products Inspection Act, except for the Shell Egg Surveillance Program, voluntary laboratory analyses of egg products, and the Voluntary Egg Grading Program (21 U.S.C. 1031–1056);

(D) Talmadge-Aiken Act (7 U.S.C. 450) with respect to cooperation with States in administration of the Federal Meat Inspection Act and the Poultry Products Inspection Act;

(E) Humane Slaughter Act (7 U.S.C. 1901–1906);

(F) National Laboratory Accreditation Program (7 U.S.C. 138–138i) with respect to laboratories accredited only for pesticide residue analysis in meat and poultry products;

(G) Administer and conduct a Food Safety Research Program (7 U.S.C. 427); and

(H) Conduct an education program regarding the availability and safety of processes and treatments that eliminate or substantially reduce the level of pathogens on meat, meat food products, poultry, and poultry products (21 U.S.C. 679b).

(iii) Coordinate with the Assistant Secretary for Marketing and Regulatory Programs the administration of programs relating to human pathogen reduction (such as salmonella enteritidis) pursuant to section 2 of the Act of February 2, 1903, as amended (21 U.S.C. 111), and sections 4 and 5 of the Act of May 29, 1884, as amended (21 U.S.C. 120).

(iv) Enter into contracts, grants, or cooperative agreements to further research programs in the agricultural sciences (7 U.S.C. 3318).

(2) Related to committee management. Establish and reestablish regional, State, and local advisory committees for activities under his or her authority. This authority may not be redelegated.

(3) Related to defense and emergency preparedness. Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.), concerning the wholesomeness of meat and poultry and products thereof and inspection of eggs and egg products.

(4) Related to biotechnology. Coordinate the development and carrying out by Department agencies of all matters and functions pertaining to the Department’s regulation of biotechnology as they may affect the safety of meat, poultry or egg products.

(5) Related to environmental response. With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:

(i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 (a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;

(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;

(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;

(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;

(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petitions for preliminary assessment of a release or threatened release;

(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;

(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;

(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;

(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;

(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;

(xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;

(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;

(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and

(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.

(6) Related to compliance with environmental laws. With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or administrative consent order or a consent judgment in an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:

(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as further amended by the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 et seq.);

(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 et seq.);

(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);

(iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);

(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);

(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et seq.);

(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 et seq.); and

(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).

(7) Related to hazardous materials management.

(i) Serve on the USDA Hazardous Materials Policy Council.

(ii) Recommend actions and policies that enable the USDA agency under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.

(iii) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.

(iv) Exercise primary responsibility to regulate drug, pesticide, and environmental contaminants in food products as covered by the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 et seq.), including the Food Quality Protection Act of 1996, Public Law 104-170, and the Toxic Substances Control Act, as amended (15 U.S.C. 2601 et seq.), as implemented by the Food Safety and Inspection Service through a Memorandum of Understanding with the United States Department of Health and Human Services, Food and Drug Administration, and the United States Environmental Protection Agency.

(8) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Food Safety, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(1) of this section.

(b) The following authorities are reserved to the Secretary of Agriculture:

(1) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

(2) [Reserved] [60 FR 56393, Nov. 8, 1995, as amended at 65 FR 12428, Mar. 9, 2000; 68 FR 27436, May 20, 2003; 74 FR 3402, Jan. 21, 2009; 80 FR 58337, Sept. 29, 2015]

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