Pria

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Accreditation of Laboratories to Conduct Food Testing

Docket No. FDA-2019-N-3325

Preliminary Regulatory Impact Analysis
Initial Regulatory Flexibility Analysis
Unfunded Mandates Reform Act Analysis

Economics Staff
Office of Economics and Analysis
Office of Policy, Legislation and International Affairs
Office of the Commissioner

Table of Contents
I.

Introduction and summary ....................................................................................................... 6
A. Introduction .......................................................................................................................... 6
B. Summary of costs and benefits ............................................................................................ 7
C. Definition of Terms Used in this Analysis ........................................................................ 10

II. Preliminary Regulatory Impact Analysis .............................................................................. 13
A. Background ........................................................................................................................ 13
B. Market Failure Requiring Federal Regulatory Action ....................................................... 15
C. Purpose of the Proposed Rule ............................................................................................ 16
D. Baseline Conditions ........................................................................................................... 17
1.

Number of entities .......................................................................................................... 18
a. The existing number of ABs and the number of ABs that would participate in our
program .............................................................................................................................. 18
b.

The number of labs that would participate in the labs program ................................. 19
i. The existing number of labs that test human and animal food offered for import
covered under the proposed rule that would participate in the labs program ................ 20
ii. The existing number of labs that test shell-eggs, sprouts, and bottled water subject
to specific testing requirements covered under the proposed rule that would participate
in the labs program ......................................................................................................... 22
iii. The number of labs that would test with accredited labs under other circumstances
as required by FDA ........................................................................................................ 24

c. The number of affected importers of human and animal food offered for import
covered under the proposed rule ....................................................................................... 25
d. The number of shell-egg, sprouts and bottled water manufacturers affected by the
proposed rule ...................................................................................................................... 25
e.
2.

The total number of entities ........................................................................................ 26
The current baseline practices of affected entities ......................................................... 27

a.

Accreditation status of labs that would participate in our program ............................ 27
i. The current accreditation status of labs that would participate to test human and
animal food offered for import covered under the proposed rule .................................. 27
ii. The current accreditation status of labs that would participate to test shell eggs,
sprouts, bottled water, and other food testing covered under the proposed rule ............ 27
2

iii. Summary of the accreditation status of all participating labs ................................. 29
b.

The baseline number of analytical reports .................................................................. 30
i. Analytical reports of tests of human and animal food offered for import covered
under the proposed rule .................................................................................................. 30
ii.

Analytical reports of tests of shell-eggs subject to specific testing requirements .. 31

iii. Analytical reports of tests of sprouts and bottled water subject to specific testing
requirements covered under the proposed rule .............................................................. 32
iv. Analytical reports of tests conducted to satisfy other testing covered under the
proposed rule .................................................................................................................. 34
c.

Baseline costs for industry to compile and for us to review an analytical report ....... 35

E. Benefits of the Proposed Rule............................................................................................ 39
1. Annual cost savings from specifying requirements for tests and analytical reports for
human and animal food offered for import covered under the proposed rule ....................... 40
2. Cost savings from abridged analytical reports for tests of human and animal food
offered for import covered under the proposed rule .............................................................. 43
3.

Total Cost-savings from allowing abridged reporting ................................................... 45

4. Cost-savings from reduced burdens to review analytical reports of tests of human and
animal food offered for import covered under the proposed rule due to improvements to the
current management systems ................................................................................................. 46
5.

Total cost-savings from the proposed rule ..................................................................... 47

6.

Improved Test Performance ........................................................................................... 47
a. Fewer false negative results for tests of human and animal food subject to the
proposed rule ...................................................................................................................... 51
i. Fewer contaminated servings of human and animal food offered for import covered
under the proposed rule that would reach the consumer ................................................ 52
ii. Fewer contaminated servings of shell-eggs, sprouts and bottled water and other
food subject to testing covered under the proposed rule ................................................ 56
iii. Fewer illnesses from fewer contaminated servings on the market ......................... 58
iv. Avoided Quality-adjusted Life-day (QALDs) from fewer contaminated servings on
the market ....................................................................................................................... 61
b.

Avoided revenue losses from fewer false positive test results ................................... 64
i. Avoided revenue losses from fewer false positive test results for human and animal
food offered for import covered under the proposed rule .............................................. 65
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ii. Avoided revenue losses from fewer false positive test results for shell-eggs, sprouts
and bottled water subject to testing requirements .......................................................... 66
iii. Total avoided revenue losses .................................................................................. 68
7. Deterrence of unsafe food manufacturing practices due to better expected test
performance ........................................................................................................................... 69
8.
F.

Improved test reporting practices from test reporting requirements .............................. 70
Costs of the Proposed Rule ................................................................................................ 72

1.

Costs incurred by participating ABs .............................................................................. 72
a.

Costs for initial applications for recognition .............................................................. 73

b.

Costs for applications for renewal and maintenance of recognition .......................... 73

c.

Costs to modify existing programs to accredit labs to the proposed standards .......... 74

d.

Costs to periodically assess participating labs ............................................................ 76

e.

Recordkeeping and reporting costs............................................................................. 76

f. Costs to ensure verification studies submitted by participating labs are evaluated
properly .............................................................................................................................. 77
g.
2.

Summary of costs incurred by ABs ............................................................................ 78
Costs incurred at the lab level ........................................................................................ 80

a.

Costs to attain and maintain accreditation to the ISO/IEC 17025 .............................. 80

b.

Costs for participating labs to be assessed by us and ABs ......................................... 82

c.

Costs to participate in a proficiency testing program ................................................. 83

d.

Costs to validate testing methodology ........................................................................ 84

e. One-time costs to compile 10 consecutive successful full analytical reports per lab
prior to qualifying for abridged reporting .......................................................................... 85
3.

Costs incurred for each test ............................................................................................ 87
a.

Costs of the notice of sampling .................................................................................. 88

b.

Costs to generate a sample collection plan and to compile a sample collection report
88

c. Costs for participating labs to collect sampler credentials, sample collection plans and
reports and to confirm accreditation status for methods of testing that they conduct ....... 91
d.

Costs to report results from validation and verification studies ................................. 92

e.

Costs for switching to participating labs accredited to the appropriate scope............ 96

f.

Summary of costs incurred by test ............................................................................. 99
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4.

Cost of fewer false negative test findings .................................................................... 100

5.

One-time costs to learn the rule.................................................................................... 101

6.

FDA Costs .................................................................................................................... 102
a.

Costs for management systems upgrades, maintenance and training ....................... 103

b.

Costs to evaluate the initial applications for recognition ......................................... 104

c.

Costs to evaluate applications for renewal ............................................................... 104

d.

Costs to maintain website registry with information on ABs and labs .................... 105

e. One-time costs to review 10 consecutive successful full analytical reports per lab
prior to qualifying for abridged reporting ........................................................................ 106
f.

Costs to review analytical reports ............................................................................. 107

g.

Costs to assess participating labs .............................................................................. 108

h.

Summary of FDA costs ............................................................................................ 109

7. Summary of total annualized and present value of costs of the proposed rule discounted
at seven percent and at three percent over 10 years ............................................................ 110
a.

Distributional Effects ................................................................................................ 112

b.

International Effects ................................................................................................. 113

c.

Uncertainty and Sensitivity Analysis ....................................................................... 114

G. Analysis of Regulatory Alternatives to the Proposed Rule ............................................ 115
1.

Do not allow abridged reporting .................................................................................. 115

2. Cover only tests of human and animal food offered for import covered under the
proposed rule ....................................................................................................................... 116
3.

Prohibit in-house testing............................................................................................... 116

III. Initial Small Entity Analysis .............................................................................................. 117
A. Description and Number of Affected Small Entities ....................................................... 118
B. Description of the Potential Impacts of the Rule on Small Entities ................................ 120
C. Alternatives to Minimize the Burden on Small Entities .................................................. 123
IV. References ........................................................................................................................... 124

5

I.

Introduction and summary

A. Introduction
We have examined the impacts of the proposed rule under Executive Order 12866,
Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866
and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other advantages; distributive
impacts; and equity). Executive Order 13771 requires that the costs associated with significant
new regulations “shall, to the extent permitted by law, be offset by the elimination of existing
costs associated with at least two prior regulations.” We believe that this proposed rule is not a
significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires us to analyze regulatory options that would
minimize any significant impact of a rule on small entities. Because a significant number of
testing laboratories are small businesses and due to initial one-time costs we find that the
proposed rule will have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a
written statement, which includes an assessment of anticipated costs and benefits, before
proposing "any rule that includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or
more (adjusted annually for inflation) in any one year." The current threshold after adjustment
for inflation is $154 million, using the most current (2018) Implicit Price Deflator for the Gross
6

Domestic Product. This proposed rule would not result in an expenditure in any year that meets
or exceeds this amount.

B. Summary of costs and benefits
The proposed rule, if finalized, would require that testing of food in certain circumstances
be performed by an accredited laboratory (participating lab) accredited to the proposed standards
by a recognized accreditation body (participating AB), and for the results to be submitted to us.
The costs of the proposed rule, if finalized, would primarily be incurred by participating ABs,
participating labs, shell-egg producers, sprouts producers and bottled water manufacturers, and
owners and consignees of all human and animal food offered for import covered by the proposed
rule. Rarely, certain firms would have participating labs conduct tests for several reasons
including as part of a corrective action plan after an order suspending registration, as part of
evidence for a hearing prior to issuance of a mandatory recall order, as part of evidence for an
appeal of an administrative detention order, and as would be required under a food testing order.
We anticipate few of these tests would be conducted and estimate the costs incurred by owners
of food subject to these testing requirements would be negligible. We would incur costs to
establish and maintain the program for recognizing ABs hoping to participate in our program,
assessing participating ABs and participating labs, and for reviewing associated documents and
reports. The present value of the costs of the proposed rule, if finalized, would range from $34
million to $78 million when discounted by 7 percent over 10 years and would range from $39
million to $92 million when discounted by 3 percent over 10 years. Annualized costs over 10
years would range from $4.6 million to $9.3 million, with a primary estimate of $6.7 million

7

when discounted by 7 percent and would range from $4.7 million to $9.3 million, with a primary
estimate of $6.8 million when discounted by 3 percent.
The proposed rule, if finalized, would generate some quantified and unquantified
benefits. Quantified benefits include cost-savings from the proposed clarifications of the process
for compiling, submitting and reviewing analytical reports for human and animal food offered
for import covered under the proposed rule, including reduced reporting burden. We anticipate a
reduction in the number of foodborne illnesses from fewer false negative test results for all
human and animal food offered for import covered under the proposed rule and for shell-eggs,
sprouts and bottled water and other food subject to specific testing requirements covered under
the proposed rule. There would be less revenue lost from fewer false positive test results for
human and animal food offered for import covered under the proposed rule and for tests of shelleggs, sprouts and bottled water and other food subject to the specific testing requirements
covered under the proposed rule. The present value of the quantified benefits of the proposed
rule, if finalized, would range from $26 million to $81 million when discounted by 7 percent
over 10 years and would range from $32 million to $98 million when discounted by 3 percent
over 10 years. Annualized benefits over 10 years would range from $3.7 million to $11.5
million, with a primary estimate of $7.6 million when discounted by 7 percent and would range
from $3.7 million to $11.5 million, with a primary estimate of $7.6 million when discounted by 3
percent.
Unquantified benefits could include fewer illnesses from deterring unsafe manufacturing
practices by all entities covered by the proposed rule. We expect that specific test reporting

8

requirements would result in more accurate analytical reports and reporting. 1 We have developed
a comprehensive Economic Analysis of Impacts that assesses the impacts of the proposed rule.
In Table 1, we provide the Regulatory Information Service Center (RISC) and Office of
Information and Regulatory Affairs Consolidated Information System accounting information.

Table 1: Summary of Benefits, Costs and Distributional Effects of Proposed Rule1
Category

Annualized
Monetized
$millions/year
Annualized
Quantified
Qualitative
Benefits

Primary
Estimate

Low
Estimate

High
Estimate

$7.56

$3.71

$11.52

$7.56

$3.71

$11.52

Units
Year Discount Period
Dollars
Rate
Covered

2016

7%

2016

3%

10
years
10
years

Notes
Cost
savings
Cost
savings

7%
3%
Reduced risk of food-related
illness from improper test
reporting practices for
imported human and animal
food covered under the
proposed rule, and shelleggs, sprouts and bottled
water and other covered tests
Reduced risk of food-related
illness from unsafe food
manufacturing practices

Annualized
Monetized
$millions/year

$6.73

$4.64

$9.27

$6.76

$4.73

$9.28

Costs
Annualized
Quantified
Qualitative
Federal
Transfers
Annualized

2016

7%

2016

3%

10
years
10
years

7%
3%
7%
3%

1

We note that there are currently no reporting requirements for tests of shell-eggs, sprouts or
bottled water.
9

Category

Effects

1

Primary
Estimate

Low
Estimate

High
Estimate

Units
Year Discount Period
Dollars
Rate
Covered

Notes

Monetized
$millions/year
From/ To
From:
To:
Other
7%
Annualized
3%
Monetized
$millions/year
From/To
From:
To:
State, Local or Tribal Government: None
Small Business: Potential impacts on laboratories currently not accredited to
ISO/IEC 17025 that would participate in the labs program described by the
proposed rule.
Wages: None
Growth: None

The lower bound equals the 5th percentile and the upper bound equals the 95th percentile.

In line with Executive Order (EO) 13771, in Table 2 we estimate present and annualized
values of costs and cost savings over an infinite time horizon.

Table 2: EO 13771 Summary Table (in $ Millions 2016 dollars discounted over an infinite time
horizon) 1

$100.29

Lower
Bound
(7%)
$56.49

Upper
Bound
(7%)
$144.54

$101.85

$71.15

-$1.56

$216.92

Lower
Bound
(3%)
$115.07

Upper
Bound
(3%)
$319.32

$134.87

$237.65

$172.25

$307.92

-$57.43

$53.51

-$20.73

-$149.76

$110.77

$7.02

$3.95

$10.12

$6.51

$3.45

$9.58

$7.13

$5.17

$9.24

$7.13

$5.17

$9.24

-$0.11

-$3.99

$3.84

-$0.62

-$4.49

$3.32

Primary
(7%)

Present Value of Costs
Present Value of Cost Savings
Present Value of Net Costs
Annualized Costs
Annualized Cost Savings
Annualized Net Costs
1

Primary
(3%)

The lower bound equals the 5th percentile and the upper bound equals the 95th percentile.

C. Definition of Terms Used in this Analysis
Throughout the analysis we use the following terms. We note that the definitions of these
terms only apply to this document.
10

•

We/us/our: used to refer to the Food and Drug Administration.

•

ISO/IEC 17025 (ISO/IEC 17025:2017) is the International Organization for
Standardization/International Electrotechnical Commission (ISO/IEC) standard,
an internationally recognized set of management and technical requirements used
to evaluate a laboratory’s competence to carry out tests or calibrations, including
sampling. ISO/IEC 17025 is a voluntary international consensus standard for
which labs hold accreditation to be deemed technically competent.

•

ISO/IEC 17011(ISO/IEC 17011:2017) is a voluntary international consensus
standard that specifies requirements for the competence, consistent operation, and
impartiality of accreditation bodies assessing and accrediting testing laboratories
and other conformity assessment bodies.

•

Accreditation refers to the independent evaluation of a laboratory, against
recognized standards, to carry out specific activities that ensure impartiality and
competence.

•

International Laboratory Accreditation Cooperation (ILAC) is an international
organization for accreditation bodies operating in accordance with ISO/IEC
17011 and involved in assessing and accrediting testing laboratories; ILAC’s
primary purpose is to establish an international arrangement between member
accreditation bodies based on peer evaluation and mutual acceptance.

•

ILAC Mutual Recognition Arrangement (MRA) is international agreement that
provides the technical basis to assess and accredit testing laboratories to ISO/IEC
17025. Accreditation bodies that are signatories to the ILAC MRA have been peer
evaluated in accordance with the requirements of ISO/IEC 17011 to demonstrate
their competence and agree to recognize each other’s results.

•

Accreditation Bodies (ABs) is a general term that includes all accreditation bodies
that could be affected by the proposed rule if finalized.

•

The labs program refers to our proposed laboratory accreditation program as
defined by the proposed rule.

•

Labs is a general term that includes all laboratories that could be affected by the
proposed rule if finalized.

•

Participating labs refers to laboratories that would participate in the labs program
under the proposed rule, if finalized.

•

Participating ABs refers to ABs that would participate in the labs program under
the proposed rule, if finalized.

11

•

Import Alerts list products which may be detained after they are imported or
offered for import, without physically examining the products, due to their
violative history or potential.

•

Human or animal food offered for import covered by the proposed rule refers to
any food offered for import or potentially offered for import that uses findings
from analytical tests performed by a private laboratory to support its admissibility.
Food subject to an import alert would typically fall in this category.

•

Other testing covered under the proposed rule refers to:
o as required by FDA in a Food Testing Order
o to address an identified or suspected food safety problem and presented to
FDA as part of evidence for a hearing prior to the issuance of a mandatory
food recall order, as part of a corrective action plan submitted after an order
suspending the registration of a food facility, or as part evidence submitted for
an appeal of an administrative detention order;

•

Owners and consignees are owners and consignees of human or animal food
offered for import covered under the proposed rule.

•

Scope refers to the testing methods to which a lab is accredited.

•

Specific testing requirements refers to food testing conducted in any of the
following circumstances:
o In response to explicit testing requirements that address an identified or
suspected food safety problem, which are contained in regulations for the
production of sprouts, shell-eggs, and bottled drinking water. Each of these
explicit testing requirements refers to a follow-up, or corrective action after a
routine test is positive for a pathogen or indicator organism. (See the proposed
rule for the specific references.)

•

Switching costs refer to the incremental increase in the costs to ship samples to
participating labs.

•

Proficiency test, according to ISO, is an evaluation of participant performance
against pre-established criteria by means of interlaboratory comparisons
measures.

•

Full analytical report refers to the entire set of information, including test results,
that would be sent by a participating lab to us.

•

Abridged analytical report refers to a subset of the information that would be
required in a full analytical report that would be sent by a participating lab to us.
12

II.

Preliminary Regulatory Impact Analysis

A. Background
On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act
(FSMA) into law. FSMA is intended to help FDA to better protect public health by helping
ensure the safety and security of the U.S. food supply by focusing on preventing food safety
problems rather than primarily reacting to these problems once they surface. FSMA recognized
that food testing could perform different roles in supporting a modern food safety system and
that food testing can play a role in detecting and responding to food safety problems. FSMA
requires that food be tested by accredited laboratories in four circumstances:
•

In response to a specific testing requirement (see list of terms above);

•

As required by the Secretary to address an identified or suspected food safety
problem;

•

In support of admission of an article of food offered for import;

•

Under an Import Alert that requires successful consecutive tests.

In these circumstances, FSMA requires food testing by accredited laboratories. With one
exception, FSMA requires the results of food testing that must be conducted by an accredited
laboratory to be sent directly to us.
In recent years we have explored various approaches to improving the quality and
consistency of food testing and reporting. On April 29, 2004, we proposed a rule establishing
standards for sampling and testing practices that targeted imported food, and for improving the
reliability and scientific validity of the test results that we use to make food import admissibility
decisions (Ref. 1). That proposed rule would have required that (1) samples of food be properly

13

identified, collected, and maintained; (2) labs conducting the testing use validated analytical
methods; and (3) these labs submit the test results directly to us.
On January 16, 2009, we issued a draft guidance entitled “Guidance for Industry:
Submission of Laboratory Packages by Accredited Laboratories,” in which we recommended a
voluntary accreditation program for labs that test to support decisions regarding the admissibility
of food offered for import (Ref. 2). The draft guidance noted that oversight of labs by ABs would
enhance our confidence in the test results, and the draft guidance recommended that:
•

ABs operate in accordance with the standard ISO/IEC 17011:2004 “General
requirements for accreditation bodies accrediting conformity assessment bodies”

•

ABs be signatories to the ILAC MRA

•

Labs accredited by ABs submit all test results directly to us, and

•

Importers notify us in advance of which accredited laboratory they intended to use

In addition, the draft guidance suggested a process that would allow labs to submit
“abbreviated” analytical reports to us rather than a “full” analytical report. This proposed rule
would codify many elements of the 2004 proposed rule and 2009 draft guidance. The proposed
rule, if finalized, would require labs be accredited to ISO/IEC 17025 to participate in the labs
program, and would define the circumstances under which tests must be conducted by a
participating lab, including in support of admission of human or animal food offered for import,
and for tests of shell-eggs, sprouts and bottled water subject to specific testing requirements and
for food subject to other testing requirements covered by the proposed rule. To fulfill the FSMA
mandate and the regulatory purpose of the labs program, we are proposing some requirements
beyond those required by ISO/IEC 17025, including certain test verification and validation
reporting requirements. In addition, the proposed rule requires some oversight of the sampling
process, including by requiring the participating lab to obtain information about the training and
14

experience of the sampler as well as sampling plans and sampling reports. The proposed rule
defines the elements of a “full” analytical report, the process by which participating labs may be
allowed to submit “abridged” analytical reports, and the requirements for us to administer the
labs program and for ABs and labs to participate in the labs program.
B. Market Failure Requiring Federal Regulatory Action
Lab accreditation to an industry standard is currently voluntary and there is no
requirement by us to use an accredited lab. There is evidence that the quality of tests performed
by labs accredited to an industry standard is higher than the quality of tests performed by
unaccredited labs (Ref. 3). The use of food testing labs that fail to provide reliable and accurate
results may have large public health consequences.
Firms may not know the true quality of a lab’s tests at the time a lab is selected or may
not fully internalize the public health consequences of a lab’s failure to provide reliable and
accurate test results in certain circumstances important to public health. The combination of
these factors creates an externality or market failure when choosing a lab to test human or animal
food under certain circumstances. The proposed rule, if finalized, would address this market
failure by requiring that certain food testing important to public health be conducted only by
participating labs that meet our proposed requirements.
Asymmetric information among human and animal food labs, sample collectors and
sample collection entities, and FDA can exacerbate the market failure. The proposed rule
includes specific lab reporting requirements that would help address the asymmetric information
about testing practices. Finally, the proposed rule fulfills provisions in FSMA that require us to
recognize ABs that accredit labs to conduct food testing as part of the labs program and that
participating labs adhere to model standards.
15

C. Purpose of the Proposed Rule
The purpose of the proposed rule is to ensure the quality of tests and reporting in certain
situations. The proposed rule would establish a program that recognizes ABs, provides standards
that participating labs must meet, and under certain circumstances requires the use of
participating labs. ABs that hope to participate in our program would need to apply to us for
recognition, maintain recognition status, and accredit labs that hope to participate in the labs
program. Participating ABs would tailor their existing program to incorporate the labs program
requirements, assess participating labs for adherence to the labs program requirements, maintain
current records, and report to us relevant updates regarding changes in the accreditation status of
participating labs. Participating ABs would also be periodically assessed by us for adherence to
the proposed requirements. We assume that all domestic ABs currently accredited to ISO/IEC
17011 and ILAC MRA signatories would apply to participate in the labs program, and that
foreign ABs might also apply as well.
Labs that hope to participate in the labs program would have to become accredited to
ISO/IEC 17025 and participate in a proficiency testing program for analytical methods at a
prescribed frequency. Under certain circumstances, participating labs would need to validate and
verify analytical methods beyond the validation and verification requirements of ISO/IEC 17025.
The proposed rule, if finalized, would require that participating labs:
•

Be periodically assessed by their AB for adherence to the requirements under the
labs program

•

Send certain test results directly to us and adhere to format and content
requirements for an analytical report

•

Provide notices of sampling prior to collecting the sample in certain situations

16

•

Review sample documentation such as a sampling plan, a sample report, and the
sampler’s credentials

•

Ensure the analytical methods required are appropriate for the scope to which it is
accredited

•

Submit analytical reports, and comply with other documentation recordkeeping
requirements

We would recognize and oversee the participating ABs. We would also review test
results and reports from participating labs. We would administer the labs program and would
have the authority to assess participating labs’ performance.
D. Baseline Conditions and the Number of Affected Entities
In this section we describe the number and types of affected entities and the baseline
conditions for our analysis. We consider pre-FSMA conditions as the baseline. There had been
an upward trend in lab accreditation prior to 2011 (see Background section) and we assume that
current rates of lab accreditation are independent of any FSMA requirements. Moreover, our
Import Alert program was operational prior to 2011 and we assume that current rates of import
alerts are independent of any FSMA requirements.
We use a simulation model to estimate current baseline practices and the number of
affected entities. The simulation allows us to account for uncertainty in our estimates.
Throughout this document, we report our assumptions about the distribution of the inputs, and
report the 5th percentile, mean, and 95th percentile for our simulated outputs. We report the
estimated numbers of entities affected by the proposed rule in Table 3. The proposed rule would
primarily affect the following entities:
•

Eligible ABs seeking recognition by FDA

•

Labs that test human and animal food offered for import covered by the proposed
rule,
17

•

Labs that test shell-eggs, sprouts and bottled water subject to the specific testing
requirements covered by the proposed rule

•

Owners and consignees of human and animal food offered for import covered by
the proposed rule

•

Shell-egg producers, sprouts producers, and bottled water manufacturers

•

Owners and consignees of other human and animal food subject to other testing
covered by the proposed rule.

•

FDA.

We first estimate the number of affected entities and the current accreditation status of
labs. We then describe the numbers of analytical reports of tests of human and animal food
offered for import covered by the proposed rule, and of tests of shell-eggs, sprouts, bottled water
and foods subject to other testing covered by the proposed rule. We also describe the
inefficiencies in the current process to submit and review analytical reports of tests of human and
animal food offered for import covered by the proposed rule.
1. Number of entities
a. The existing number of ABs and the number of ABs that would participate in our
program
ABs that are signatories to the ILAC MRA exist in 70 countries. However, most
countries have one national AB. Four countries have more than one AB: the US has five ABs;
Thailand, Canada and Japan each have three ABs. The signatory members follow the ISO/IEC
17011 standard and any related ILAC guidance documents. ABs ensure that their accredited labs
comply with ISO/IEC 17025, and any related ILAC guidance documents. We estimate that all 5
domestic ABs would participate in the labs program and up to 80 ABs (5 domestic ABs plus 75
foreign ABs) might participate in the labs program.

18

Several existing ABs already fulfill many of the proposed requirements such as signatory
to the ILAC MRA, conforming to the ISO/IEC 17011 standard, and accrediting labs to the
ISO/IEC 17025 standard. These ABs would currently perform reviews, audits and assessments of
labs’ processes and management systems, including self-assessments, at the proposed
frequencies. These ABs generally would have the capacity to evaluate labs to determine a lab’s
ability to meet the proposed requirements. Moreover, existing ABs can place a lab on probation,
or revoke, renew, or reduce the scope of a laboratory’s accreditation. In addition, ISO/IEC 17011
requires an AB to have a written program like the one in the proposed rule that addresses and
protects against potential conflicts of interests with the labs that the AB accredits. In our
analysis, we estimate the number of ABs that would participate in the labs program by assuming
a Pert 2 distribution between 5 ABs and 80 ABs, with 5 ABs being the most likely number (the
number of domestic ABs), and 18 (17.5, rounded up) ABs being the mean of the distribution. We
ask for comment on this assumption.
b. The number of labs that would participate in the labs program
We assume that most labs that would choose to participate in the labs program would
come from the pool of labs that currently test human or animal food offered for import covered
under the proposed rule, and shell-eggs, sprouts, or bottled water subject to specific testing
requirements covered under the proposed rule. Moreover, we assume that most of the labs that
choose to participate in the labs program would currently be accredited to ISO/IEC 17025.
However, some of these labs may decide not to participate in the labs program to avoid the
additional costs associated with labs program participation. Furthermore, some labs not currently

2

A probability distribution defined by three parameters; a minimum, a maximum and a most
likely value
19

accredited to ISO/IEC 17025 may choose to participate in the labs program if their current
standards of operation roughly match those required by the proposed rule, if finalized.
Informal communications with labs that test human and animal food offered for import
covered under the proposed rule suggest that these labs may differ from the labs used for shellegg, sprouts, and bottled water subject to specific testing requirements covered under the
proposed rule. Labs that test human or animal food offered for import covered under the
proposed rule may be located close to ports of entry and specialize in testing protocols for foods
based on Import Alerts. Labs that test shell-eggs, sprouts, and bottled water may be more
geographically dispersed and specialize in testing and sampling protocols specific to shell-eggs,
sprouts and bottled water requirements. For this analysis, we estimate the impacts of the
proposed rule on these two types of labs separately. We ask for comment on the numbers,
specializations, and geographic locations of labs that test human and animal food offered for
import covered under the proposed rule and labs that test shell-eggs, sprouts, and bottled water
subject to specific testing requirements covered under the proposed rule.
i.

The existing number of labs that test human and animal food offered for import
covered under the proposed rule that would participate in the labs program
We estimate the range in the number of labs that would test human and animal food

offered for import covered under the proposed rule from the pool of all labs reported in our
Private Laboratory Analytical Package System (PLAPS) for January 1, 2016, through December
31, 2017 (Ref. 4). Approximately 106 private labs performed the testing of human and animal
food offered for import covered under the proposed rule during this period, with 44 of the labs
accredited to ISO/IEC 17025 and 62 of the labs unaccredited for any scope. During this period,
accredited labs performed between 92.4 percent and 96.8 percent of all tests, with an average of
20

97.4 percent. Ten of the labs, owned by four companies, performed between 82 percent and 86
percent of the analyses.
We assume that some labs may decide to forego participation in our program rather than
incur the additional costs associated with accreditation. We assume that labs would choose to
participate in the labs program if their current standards of operation are roughly comparable to
our proposed requirements, or if a significant fraction of their business would include testing
covered by this proposed rule, or some combination of these two situations. Because ten labs
currently perform a large share of tests of human or animal food offered for import covered
under the proposed rule (82 percent to 86 percent) we assume that many labs that currently
perform these tests (106 labs in total) would decide not to participate in the labs program. We
assume that approximately 25 percent of the total number of labs that test human and animal
food offered for import covered under the proposed rule between January 1, 2016 through
December 31, 2017, or approximately 25 labs (25 percent x 106 labs = 26.5 labs, rounding to the
nearest 5 to acknowledge uncertainty in the estimate) would be an upper bound on the number of
labs that would choose to participate in the labs program. We ask for comment on this
assumption.
In our analysis, we estimate the range in the number of labs that would test human or
animal food offered for import covered under the proposed rule that would participate in the labs
program by assuming a Pert distribution between 4 labs (the number of companies that own the
ten labs that perform 82 percent to 86 percent of analyses) and 25 labs, with 10 labs being the
most likely number (the number of labs that perform 82 percent to 86 percent of analyses), and
12 labs being the mean of the distribution. We ask for comment on the number of labs that test

21

human or animal food offered for import covered under the proposed rule that would participate
in the labs program.
ii.

The existing number of labs that test shell-eggs, sprouts, and bottled water subject to
specific testing requirements covered under the proposed rule that would participate
in the labs program
We lack detailed information on the number of labs that currently test shell-eggs, sprouts,

and bottled water subject to specific testing requirements covered under the proposed rule and
that might choose to participate in the labs program. However, we have information on the use of
labs by the shell-egg industry from an informal survey of members of the Egg Safety Committee
of the National Egg Regulatory Officials (NERO). We do not have a reliable source of
information on the numbers of labs used by bottled water manufacturers and by sprouts
producers; we anticipate few bottled water tests and few sprouts tests would be subject to the
specific testing requirements covered by this proposed rule. Therefore, we assume that the labs
used by shell-egg producers are also used by bottled water manufacturers and sprouts producers.
We ask for comment on this assumption.
Findings from a survey of members of the Egg Safety Committee of the National Egg
Regulatory Officials conducted in 2015 indicate that egg producers often use a public university
or state lab to test shell-eggs (Ref. 5). We assume these labs would test eggs subject to the
specific testing requirements covered by the proposed rule. Responses to the survey from 17
owners who each own several large egg farms suggest that 71 percent of egg farms use a state
government lab or in-state public university lab for egg testing. The remaining 29 percent of
owners reported that they use a private lab located outside of the state. While there may be biases
when applying the 17 responses of the Egg Safety Committee of NERO to the behavior of the

22

industry overall, the findings suggest the use of public university or state labs by the egg industry
for egg testing is likely widespread.
Thus, as an upper bound on the number of participating labs, we estimate that 50 labs
(corresponding to 1 lab in each of the 50 states) might test shell-eggs subject to testing
requirements covered under the proposed rule. We note that while not all respondents reported
using public or state labs for testing shell-eggs, our upper bound estimate assumes that every
state would have a private or public participating lab. We assume that one third of the upper
bound (16) would be the lower bound on the number of labs that test shell-eggs subject to testing
requirements covered under the proposed rule that would participate in the labs program. We ask
for comment on the number of labs that test shell-eggs that would participate in the labs
program.
We consider it unlikely that labs would participate in the program if tests of sprouts
subject to specific testing requirements covered under the proposed rule were the only tests that
would be performed by the participating lab. Consequently, we estimate that the number of
participating labs that would test sprouts subject to specific testing requirements covered under
the proposed rule is smaller than the number of labs that test shell-eggs, and that a subset of the
labs that test shell eggs would perform all tests of sprouts subject to specific testing requirements
covered under the proposed rule.
We lack detailed information on the number of labs that test bottled water subject to
specific testing requirement covered under the proposed rule. We do not have documentation of
every instance where bottled water manufacturers were required to test five samples from a
sampling site that originally tested positive for E. coli. For purposes of this analysis, we estimate
that the number of participating labs that would test bottled water subject to specific testing
23

requirements covered under the proposed rule is smaller than the number of labs that test shelleggs, and that a subset of the labs that test shell eggs would perform all tests of bottled water
subject to specific testing requirements covered under the proposed rule. We request comment on
this assumption and information about labs that test bottled water.
iii.

The number of labs that would test with accredited labs under other circumstances
as required by FDA
The proposed rule, if finalized, would affect labs that test under the following

circumstances:
•

As part of a corrective action plan after an order suspending registration,

•

To submit evidence for a hearing prior to a mandatory recall order,

•

To submit evidence for an appeal of an administrative detention order, and

•

Under a food testing order.

We lack detailed information on the number of labs that would participate in our labs program
for these purposes. Moreover, we assess that these tests would occur infrequently. Note that
food testing orders are a new tool we would be implementing via this rulemaking, but we expect
the annual number would be quite low. We consider it unlikely that the small number of tests
that might be conducted in these situations would support the costs to participate in the labs
program if these were the only tests performed by the participating lab. Consequently, we
estimate the number of participating labs that would perform these tests would be smaller than
the number of labs that test shell-eggs, sprouts or bottled water and that a subset of the labs that
test shell eggs, sprouts or bottled water subject to specific testing requirements would perform all
tests required for these situations. We ask for comment on this assumption.

24

c. The number of affected importers of human and animal food offered for import
covered under the proposed rule
We assume that importers of human and animal food offered for import covered under
the proposed rule would communicate with the United States Customs and Border Patrol and us
regarding any testing that might be required. Internal information reports there were 1,219
importers associated with human or animal food offered for import covered under the proposed
rule during the 2018 fiscal year. We assume a lower bound of 1,219 importers of human and
animal food offered for import covered under the proposed rule that would incur one-time cost to
learn about the proposed rule. Because human and animal food offered for import covered under
the proposed rule varies from year to year we anticipate that the importers of such human and
animal food would also vary from year to year. We assume that three times the lower bound
(3,657) would be the upper bound on the total number of importers of human and animal food
offered for import covered under the proposed rule that would incur learning costs.
d. The number of shell-egg, sprouts and bottled water manufacturers affected by the
proposed rule
We do not know by how much the number of covered shell-egg producers has changed
since publication of the Shell-egg final rule in 2009. Consequently, in our analysis we use the
number of producers (7,359) published in the Regulatory Impact Analysis of the Shell-egg final
rule (Ref. 6). We ask for comment on the use of that number in this analysis. We do not know by
how much the number of covered sprouts producers has changed since publication of the FSMA
Produce Safety Final rule in 2015. Consequently, in our analysis we use the number of producers
(285) published in the Regulatory Impact Analysis of the FSMA Produce Safety final rule (Ref.
7).
25

Internal inspection data indicate there are 669 domestic bottled water manufacturing
establishments that have been inspected between 2002 and 2016 and would be affected by the
proposed rule, if finalized. Firms that bottle water and have not yet been inspected would be
excluded from this estimate. Firms that exited the industry after being inspected may still be
listed in our database. We assume that these numbers off-set each other. We ask for information
of the potential number of firms affected by this proposed rule, if finalized.
e. The total number of entities
We estimate that the proposed rule, if finalized, would affect between about 9,600 to
about 12,100 entities, including those labs and ABs that choose not to participate in the labs
program. We report the estimated numbers of entities by type of entity in Table 3.
Table 3: Number of entities by type of entity affected by the proposed rule, if finalized
Number
Number that
Number that
1
affected
would participate would participate
(Lower bound)
(Upper bound)
ABs

80

5

80

Labs that test human and animal food
offered for import covered under the
proposed rule

106

4

25

Labs used for other testing covered under the
proposed rule

50

16

50

3,657

1,219

3,657

669

669

669

7,359

7,359

7,359

Importers of human or animal food offered
for import covered under the proposed rule
Bottled water manufacturers

Shell-egg producers

26

Sprouts producers covered by the Produce
rule
Total

285

285

285

12,125

9,557

12,125

1

Includes entities that would choose to participate in the labs program and entities that would choose not
to participate in the labs program.

2. The current baseline practices of affected entities
a. Accreditation status of labs that would participate in our program
The proposed rule, if finalized, would require that participating labs be accredited to
ISO/IEC 17025 and meet some additional management and technical requirements beyond
ISO/IEC 17025.
i.

The current accreditation status of labs that would participate to test human and
animal food offered for import covered under the proposed rule
Based on our internal study of PLAPS reports from January 1, 2016, through December

31, 2017, we assume that all participating labs that test human and animal food offered for
import covered under the proposed rule are currently accredited to ISO/IEC 17025.
ii.

The current accreditation status of labs that would participate to test shell eggs,
sprouts, bottled water, and other food testing covered under the proposed rule
We conducted an informal survey of our partner state labs and obtained 19 responses

from 19 states about their ISO/IEC 17025 accreditation status. Fourteen of the 19 labs responded
that they were accredited to ISO/IEC 17025. To estimate a lower bound on the accreditation
status of labs that would participate to test food subject to specific testing requirements and other
food testing under the proposed rule, we conservatively assume that our survey non-responses
represent unaccredited labs and that states with more than one lab would accredit only one of
their labs to the ISO/IEC 17025 standard in response to the proposed rule. If we extrapolate our
27

findings to 50 state labs, we obtain a lower bound of the accreditation status of state labs of 28
percent (= (14 affirmative responses by labs) ÷ (19 responses + 31 non-responses)). If we
extrapolate our findings to 50 state labs and assume that all 31 state labs that did not respond to
our survey are accredited to ISO/IEC 17025, we obtain an upper bound of the accreditation status
of state labs of 90 percent (= (14 affirmative responses by labs + 31 assumed affirmative
responses by non-responding labs) / (19 responses + 31 non-responses)).
Information obtained from a sprouts assignment conducted by our investigators in fiscal
year 2014-15 indicates that 14 of the 19 labs that sprouts producers reported using, or 73.7
percent, were accredited to ISO/IEC 17025 with the accreditation status of the five remaining
labs uncertain. Consequently, we estimate the accreditation status of labs that test sprouts subject
to testing requirements ranges between 73.7 percent (=14 accredited labs / 19 total labs) and 100
percent (=19 accredited labs / 19 total labs).
We assume the labs that test bottled water are a subset of the labs that test shell-eggs but
do not know the current accreditation status of labs that test bottled water. We assume the
accreditation status of participating labs that would test bottled water subject to specific testing
requirements is the same as that for participating labs that would test shell-eggs and sprouts
subject to the proposed testing requirements. We ask for comment on this assumption.
For this analysis we assume the average of the accreditation status reported above for labs
that test shell-eggs and sprouts subject to the requirements of the proposed rule represents the
accreditation status of the participating labs that would test shell-eggs, bottled water, sprouts and
as part of corrective action plans to support petitions for the reinstatement of registration, as
evidence for hearings prior to a mandatory recall, as part of evidence for hearings on
administrative detentions, and for food testing orders. The average accreditation status ranges
28

between 50.9 percent (average of 28 percent and 73.7 percent) and 95 percent (average of 90
percent and 100 percent), with a mean of 72.9 percent. We ask for comment on this assumption.
iii.

Summary of the accreditation status of all participating labs
As shown in Table 3, we expect that the number of participating labs would range from

16 labs to 50 labs. Our lower bound estimate of currently accredited labs that would participate
in the labs program equals 16 labs x 50.9 percent accreditation status, or approximately 8
accredited labs. This suggests that 8 unaccredited labs also participate to yield the total lower
bound of 16 participating labs. Similarly, our upper bound estimate of currently accredited labs
that would participate in the labs program equals 50 labs x 95 percent accreditation status, or
approximately 48 labs. This suggests that 2 unaccredited labs also participate to yield the total
upper bound of 50 participating labs. We report estimates of the accreditation status of
participating labs that would be subject to the requirements of the proposed rule in Table 4.
Table 5 shows our estimate of the number of currently accredited and unaccredited labs that
would participate in the labs program.

Table 4: The accreditation status of all participating labs
Lower bound Upper bound
Participating labs that would test human and animal food
offered for import covered under the proposed rule
Participating labs that would test shell-eggs, sprouts and bottled
water and other tests covered under the proposed rule

100%

100.0%

50.9%

95.0%

Table 5: Estimated number of labs that would participate in the labs program by current
accreditation status
Lower bound Upper bound
29

Number of labs currently accredited to ISO/IEC 17025 that
would participate in the labs program to test human and animal
food offered for import covered under the proposed rule

4

25

Number of labs currently not accredited to ISO/IEC 17025 that
would participate in the labs program to test human and animal
food offered for import covered under the proposed rule

0

0

Number of labs currently accredited to ISO/IEC 17025 that
would participate in the labs program to test eggs, sprouts,
bottled and other tests covered under the proposed rule

8

48

Number of labs currently not accredited to ISO/IEC 17025 that
would participate in the labs program to test eggs, sprouts,
bottled and other tests covered under the propose rule

2

8

Note that the sum of the cells in each column is less than corresponding bound on the number of participating labs
reported earlier. However, the lower bound of unaccredited labs plus the upper bound of accredited labs in this table
equals the upper bound on the number of participating labs by type reported earlier, and vice versa.

b. The baseline number of analytical reports

i.

Analytical reports of tests of human and animal food offered for import covered
under the proposed rule
We use information from the Private Laboratory Analytical Packages (PLAPs) dataset to

estimate the annual number of analytical reports of tests of human and animal food offered for
import covered under the proposed rule. Our practice of grouping individual analytical reports
when reporting them in our PLAPs dataset makes it difficult to precisely identify the number of
individual analytical reports. We use the results of two internal analyses of PLAPs that cover the
period between January 1, 2016, and December 31, 2017. These analyses determined that the
annual number of analytical reports submitted to us from private labs ranged between 10,378 and
14,370 reports. (Ref. 4). However, labs currently submit analytical reports to support import
admissibility decisions and may not currently submit analytical reports of tests with positive
findings. Internal information from PLAPs for 2013-2017 suggests there are between 330 and
30

740 analytical reports per year with positive findings for tests of human and animal food offered
for import covered under the proposed rule. Consequently, we estimate between 10,708 and
15,110 analytical reports would be submitted for tests of human and animal food offered for
import covered under the proposed rule (10,378 + 330 = 10,708; and 14,370 + 740 = 15,110).
ii.

Analytical reports of tests of shell-eggs subject to specific testing requirements
The proposed rule would require that only participating labs would test shell-eggs subject

to certain specific testing requirements described in the Shell-egg Final Rule (Ref. 8). The
regulatory impact analysis of the Shell-egg Final Rule does not provide estimates of the number
of tests of shell-eggs that would be performed to comply with that rule, only the costs incurred
for testing shell-eggs generally. We used this information on the costs for testing shell-eggs to
estimate the number of tests of shell-eggs implicit in that analysis. We then use this number as
the number of tests of shell-eggs that would be subject to the requirements of this proposed rule.
The regulatory impact analysis of the Shell-egg Final Rule reports total egg testing costs
that range from $6,812,000 to $7,319,000 with a 48 percent rate of compliance with the shell-egg
testing requirements. We scale these shell-egg testing costs by the estimated compliance rate to
estimate the total shell-egg testing costs that we expect would be subject to this proposed rule.
Therefore, total shell-egg testing costs range from $14,191,667 to $15,247,917. Using the per
sample test costs from the regulatory impact analysis of the shell-egg final rule--$2,169 for
sample of 1,000 eggs that includes 50 sub-samples of 20 eggs each--we calculate that labs
conduct between 6,543 tests (= $14,191,667 total costs / $2,169 per test) and 7,030 tests (=
$15,247,917 total costs / $2,169 per test) annually. Thus, we assume the number of tests of
shell-eggs derived from the Regulatory Impact Analysis of the Shell-egg Final Rule represents
31

the upper bound on the number of shell-egg tests that would be subject to the requirements of the
proposed rule.
We assume positive environmental tests that trigger shell-egg tests subject to the specific
testing requirements in the proposed rule have declined following implementation of the Shellegg Final Rule in 2009. Informal discussions with subject matter experts suggest that the fraction
of positive findings from environmental tests from shell-egg production facilities is low. For a
lower bound, we assume that 20 percent of the number of shell-egg tests derived from the
regulatory impact analysis of the Shell-egg Final Rule as the number of shell-egg tests covered
under the proposed rule – between 1,309 and 1,406 tests (20 percent x 6,543 = 1,309; and 20
percent x 7,030 = 1,406). We request comment on our assumptions.
As shown in Table 6, the proposed rule, if finalized, would require that participating labs
conduct these tests and submit analytical reports directly to us. We ask for comment on our
estimates of the number of shell-egg tests that would be subject to the requirements of this
proposed rule.
Table 6: Estimated annual number of analytical reports that would be submitted for tests
of shell-eggs
Annual
Annual number of Annual number of
shell-egg
shell-egg tests
shell- egg tests
1
testing costs
(Lower bound)
(Upper bound)
Costs of egg tests, row-based
$14,191,667
1,309
6,543
sampling
Costs of egg tests, random swab
$15,247,917
1,406
7,030
sampling
1

From Tables 24 and 25 in the Regulatory Impact Analysis of the Shell-egg Final Rule, 74 FR 33029, July 9, 2009

iii.

Analytical reports of tests of sprouts and bottled water subject to specific testing
requirements covered under the proposed rule

32

The proposed rule would require that sprout producers have participating labs conduct
follow-up tests following a positive finding of Listeria species or L. monocytogenes from
environmental surveillance required under the Produce Safety Final Rule. Sprout producers must
conduct additional testing of surfaces and areas surrounding the area where Listeria species or L.
monocytogenes was detected, conduct additional testing to determine whether the Listeria
species or L. monocytogenes has been eliminated, and conduct finished product testing when
appropriate.
We use information obtained from the sprouts assignment conducted by our investigators
in fiscal year 2014-15 to estimate the number of analytical reports that would be submitted to us
for environmental tests and finished product tests of sprouts subject to this proposed rule. From
this sprouts assignment, 2 of 186 samples of spent sprout irrigation water, or 1.07 percent, were
found to be positive for either members of the genus Salmonella or Listeria monocytogenes. We
assume that 1.07 percent of sprouts producers or 5 sprout producers (5 sprout producers = 1.07
percent x 285 covered sprouts producers) would conduct one test of a surface and one test of the
surrounding area, for an estimate of 10 tests of surfaces and surrounding areas that would be
subject to the requirements of the proposed rule. In addition, we assume that each positive
environmental test finding would trigger one finished product test that would be subject to the
requirements of the proposed rule. Consequently, we estimate there would be a total of 15 tests
that would be subject to the requirements of the proposed rule (10 tests of surfaces and the
surrounding areas, and 5 tests of the finished product). We ask for comment on the number of
environmental and finished product tests of sprouts that would be subject to the requirements of
the proposed rule.

33

The proposed rule would require that the certain bottled water testing required by current
bottled water regulations would be subject to testing under the proposed rule. We use the
estimates from the regulatory impact analysis of the Bottled Water final rule (Ref. 8) to estimate
the number of bottled water tests that would be subject to this proposed rule. The regulatory
impact analysis of the Bottled Water final rule predicts that 2 to 3 bottlers per year would have to
perform corrective action testing for E. coli positive test results from samples taken from a
bottler’s source water. A water source is considered free of E. coli after five consecutive negative
sample findings collected over a 24-hour period. The proposed rule would require that these tests
be performed by a participating lab and that the lab send the analytical reports directly to us.
Consequently, we estimate 25 to 30 tests would be performed annually by participating labs for
sprouts producers and water bottlers subject to the requirements of the proposed rule (15 tests
related to sprouts + 10 to 15 tests related to bottled water = 25 to 30 tests). We ask for comments
on this estimate.
iv. Analytical reports of tests conducted to satisfy other testing covered under the proposed
rule
Use of a participating lab may be necessary as part of a corrective action plan after an
order suspending registration, to submit evidence for a hearing prior to a mandatory recall order,
to submit evidence for an appeal of an administrative detention order, and as required under a
food testing order. Because these situations would likely occur infrequently, we estimate the
number of samples tested for the purposes discussed in this section would be included within the
ranges of the numbers of analytical tests for shell-eggs, sprouts and bottled water subject to
specific testing requirements covered under the proposed rule. We report the total number of

34

analytical reports of tests that we estimate would be compiled by a participating lab in the Table
7.
Table 7: Number of analytical reports that would be compiled by a participating lab
Lower bound
Upper bound
Human and animal food offered for import
10,708
15,110
Shell-egg final rule
1,309
7,030
Sprouts
15
15
Bottled water rule
10
15
1
Total number of analytical reports
12,041
22,170
1

Totals include analytical reports for tests conducted as part of a corrective action plan after an order suspending
registration, to submit evidence for a hearing prior to a mandatory recall order, to submit evidence for an appeal of
an administrative detention order, and under a food testing order

c. Baseline costs for industry to compile and for us to review an analytical report

The proposed rule would establish clear procedures and expectations for industry to
submit analytical reports for tests covered by the proposed rule and for us to review these
analytical reports. The current process for reviewing analytical reports of tests of human or
animal food offered for import covered under the proposed rule includes an initial check (QC)
for completeness upon receipt of the analytical report, a non-technical review of documents to
establish a link between the sample and the detained shipment as well as the adequacy of the
sample, and a high-level technical review that examines documentation to determine the
adequacy of the analytical methods used. We use information from an internal analysis of
information from 10 of our regional labs to derive an estimate of the average burden to review an
analytical report for tests of human and animal food offered for import covered under the
proposed rule. We assume the costs to review an analytical report for tests of eggs, sprouts and
bottled water subject to specific testing requirements and other tests would be the same as that
for tests of human and animal food offered for import covered under the proposed rule.
35

We assume the baseline cost for industry to compile an analytical report and for us to
review an analytical report include the probability that some analytical reports submitted by
industry are initially deficient and returned to industry before resubmitting a deficiency-free
analytical report. We use an internal study on the burden incurred by us to review an analytical
report and the percent of analytical reports that are deficient at the three stages of the review
process: the QC, the non-technical review, and high-level technical review. We assume the extra
burden incurred by industry to address a deficient analytical report is proportional to the extra
burden incurred by us to review a deficient analytical report.
A deficiency found at the QC stage is returned to industry without going further into the
review process. Deficiencies found during the non-technical review may require resampling the
lot of human or animal food or require additional information necessary to establish a link
between the sample and the lot of human or animal food it represents. A deficiency found during
high-level technical review may require us to convene an Expert Panel Task to recommend
acceptable remedies and it may require labs to submit additional information to support the
analytical methods used for the test. An internal study indicates that approximately 5 percent of
analytical reports are found to be deficient at the QC stage, 10 percent at the non-technical
review stage, and 60 percent of analytical reports are found to be deficient at the high-level
technical review stage.
Experts from our field labs estimate the burdens for each of the review stages: the burden
for the QC is 0.08 hours, for the non-technical review is 0.30 hours and the high-level technical
review is 1.51 hours, for a total burden to review an analytical report of 1.89 hours (0.08 + 0.30
+ 1.51). Consequently, we assume an acceptable analytical report that contains no deficiencies
would require a review burden of 1.89 hours. The current baseline burden to review an analytical
36

report includes the probability of it being deficient. To estimate the current baseline costs that
includes the extra review burdens incurred from deficient analytical reports we assume that each
deficient analytical report is found to be fully acceptable after the first pass-back to industry.
Consequently, we estimate the baseline burden to review an analytical report, including the
probability of it being deficient is 2.83 hours (0.08 hours for QC x (1 + 0.05 probability of
deficiency) + 0.30 hours for non-technical review x (1 + 0.1 probability of deficiency) + 1.51
hours for a high-level technical review x (1 + 0.6 probability of deficiency) = 2.83 hours).
Table 8: Average burden to review an analytical report including the probability of it being
deficient
Burden to review a
Probability of
Baseline burden to
fully acceptable
being deficient
review an analytical
Review stage
report (hours)
by review stage
report (hours)
QC
0.08
0.05
0.08
Non-technical review
0.30
0.10
0.33
High-level technical review
1.51
0.60
2.42
Total
1.89
2.83

We obtain the average extra burden of 0.94 hours for us to review an analytical report
that includes the probability of it being deficient (2.83 hours burden to review an analytical
report, including the probability if it being deficient – 1.89 hours to review a fully acceptable
analytical report = 0.94 hours). We assume the average extra burden for industry to compile an
analytical report that includes the probability of it being deficient is proportional to the average
extra burden incurred by us to review an analytical report. We do not have information on the
current baseline burden incurred by industry to compile an analytical report. We estimate the
current burden to compile an analytical report of between four hours and eight hours, which
includes the probability of it being deficient. We obtain the extra burden per analytical report
incurred by industry of between 1.3 hour (4 hours x 0.94 hours extra review burden / 2.83 review
37

burden) and 2.7 hours (8 hours x 0.94 hours extra review burden / 2.83 hours average review
burden). We report the parameters used to estimate the extra burden per analytical report for
industry and us in Tables 9a and 9b.
Table 9a: Extra burden to review an analytical report incurred by us
Burden estimate (hours)
FDA current burden to review an analytical report that includes
the probability of being deficient

2.83

FDA burden to review a fully acceptable analytical report

1.89

Extra review burden per report due to deficiencies

0.94

Table 9b: Extra burden to compile an analytical per report incurred by industry
Lower estimate
Upper estimate
(hours)
(hours)
Current baseline burden for industry to compile
an analytical report that includes the probability
4.0
8.0
of being deficient
Extra burden per report for industry due to
1.3
2.7
deficiencies

We multiply the fully loaded hourly wage for an ORA reviewer of $116.75, derived from
the FY2018 annual fully loaded salary for ORA personnel used by FDA for budgeting purposes,
to obtain the cost for us to review an analytical report of about $330 (2.83 hours x $116.75 =
$330.40) and an extra burden to review a deficient analytical report of about $110 (0.94 hours x
$116.75 = $109.74). We multiply by the fully loaded wage of a Food Scientist and Technologist
of $69.22 to obtain the baseline cost for industry to compile an analytical report of between
about $277 (4 hours x $69.22 = $276.88) and $554 (8 hours x $69.22 = $553.76), with an extra
review burden of between about $92 (1.3 hours x $69.22 = $91.97) and $184 (2.7 hours x
38

$69.222 = $183.94). We report the current baseline costs and extra burdens for us to review an
analytical report and for industry to compile an analytical report in Tables 10a and 10b.
Table 10a: Baseline costs and extra burdens for us to review an analytical report
Average
burden
Wage
Total cost
(hours)
Baseline costs for us to review an analytical report

2.83

$116.75

$330.40

Cost of the extra review burden due to deficiencies

0.94

$116.75

$109.74

Table 10b: Baseline costs and extra burdens for industry to compile an analytical report
Low
High
burden
burden
Low cost
High cost
(hours)
(Hours)
Baseline costs to compile an analytical
4.0
8.0
$276.88
$553.76
report
Cost of the extra burden to compile an
analytical report due to deficiencies

1.3

2.7

$91.97

$183.93

E. Benefits of the Proposed Rule
There are quantified and unquantified benefits from the proposed rule. Quantified
benefits include (1) cost savings from specifying the requirements for tests and analytical reports
that would reduce the extra burdens incurred by us and industry to review and compile analytical
reports of tests of human or animal food offered for import covered under the proposed rule, and
(2) cost savings from allowing participating labs to submit abridged analytical reports for tests of
human or animal food offered for import covered under the proposed rule following the
successful submission of 10 consecutive fully acceptable analytical reports. In addition,
improvements to our management systems required for establishing the labs program would
39

reduce the amount of time we spend to review an analytical report. Quantified benefits also
include the reduction in the numbers of false negative and false positive results for all tests
covered by the proposed rule. Fewer false negatives would result in fewer illnesses and QALD
losses stemming from contaminated shipments of human or animal food, and fewer false
positives would result in fewer revenue losses from shipments of safe human or animal food.
Unquantified benefits include increased deterrence of unsafe food manufacturing
practices by all covered entities due to improved test performance. Test reporting and sample
collection oversight requirements may deter improper test reporting practices and improve
sample collection practices. Better test reporting practices may result in fewer false negative test
results (if current practices encourage the intentional reporting of negative test results) while
better sample collection practices may result in tests of samples that better represent the shipment
of human or animal food. Both proposed improvements may add to the deterrence of unsafe food
manufacturing practices.
1. Annual cost savings from specifying requirements for tests and analytical reports for
human and animal food offered for import covered under the proposed rule
We currently don’t receive analytical reports for tests of shell eggs, bottled water,
sprouts, and other food subject to specific testing requirements covered under the proposed rule.
Thus, in this section and the subsequent section we calculate cost savings from tests and
analytical reports for human or animal food offered for import covered under the proposed rule.
Some analytical reports may be deficient for many reasons, including failures to include
data necessary to replicate test results, to verify and validate methods, to include names of
analysts, and other reasons. By clarifying our expectations for the content required in an
analytical report of tests of human and animal food offered for import covered under the
40

proposed rule and by specifying the requirements for tests and analytical reports we anticipate
that the proposed rule, if finalized, would generate cost-savings for us and industry. We would
spend less time reviewing deficient analytical reports before returning them to industry to
address the deficiencies, and industry would spend less time addressing deficiencies, and would
submit fully acceptable analytical reports the first time.
We assume the proposed clarifications would reduce the extra review burden incurred by
us by between 20 percent (assume some reduction in the extra review burden) and 100 percent,
and the extra burden incurred by industry by between 20 percent and 100 percent. We ask for
comment on the extent to which the proposed clarifications would reduce the extra burden for
preparing and submitting an analytical report.
To obtain the upper bound of cost savings accrued to us we multiply 100 percent of the
upper bound number of analytical reports of tests of human and animal food offered for import
covered under the proposed rule (15,110) by the extra review burden due to deficiencies from
Table 10a ($109.74). Thus the upper bound on the potential cost-savings from the clarifications
in the proposed rule equals $1,658,233. To obtain the lower bound on the cost savings accrued to
us we multiply 20 percent of the lower bound of analytical reports of tests of human and animal
food offered for import covered under the proposed rule (10,708) by the extra review burden due
to deficiencies from Table 10a ($109.74). The lower bound on potential cost-savings from
clarifications in the proposed rule equals $235,017. We assume the estimate of the cost-savings
accrued to us would be uniformly distributed between the lower and upper bounds.
To obtain the upper bound of cost savings accrued to industry we multiply 100 percent of
the upper bound number of analytical reports of tests of human and animal food offered for
import covered under the proposed rule (15,110) by the extra burden to compile an analytical
41

report from Table 10b ($183.93). Thus the upper bound of potential cost-savings for industry
equals $2,779,249. To obtain the lower bound on the cost savings accrued to industry we
multiply 20 percent of the lower bound number of analytical reports of tests of human and
animal food offered for import covered under the proposed rule (10,708) by the extra burden to
compile an analytical report from Table 10b ($183.93) Thus the lower bound of potential costsavings from clarifications in the proposed rule equals $196,948. We assume the estimate of the
cost-savings accrued to industry would be uniformly distributed between the lower and upper
bounds. In Table 11, we report the cost savings for industry and us from clarifying expectations
of tests of human and animal food offered for import covered under the proposed rule.
Table 11: Annual cost-savings to industry and us from clarifying expectations for
compiling and reviewing analytical reports of tests of human and animal food offered for
import covered under the proposed rule
Lower bound

Upper bound

Industry cost savings

$196,948

$2,779,249

FDA cost savings

$235,017

$1,658,233

We assume a uniform distribution of the cost savings to us and industry and use a Monte Carlo
simulation to obtain the 5 percent, mean and 95 percent estimates. We report these estimates in
Table 12.
Table 12: Annual cost-savings to industry and us from clarifying expectations for
compiling and reviewing analytical reports of tests of human and animal food offered for
import covered by the proposed rule
5th percentile
95th percentile
Mean estimate
estimate
estimate
Industry cost savings

$324,560

$1,488,098

$2,648,679

FDA cost savings

$305,954

$946,625

$1,586,931

42

2. Cost savings from abridged analytical reports for tests of human and animal food
offered for import covered under the proposed rule
We propose to reduce the quantity of information required in an analytical report once
participating labs have successfully submitted 10 consecutive full analytical reports.
Participating labs that successfully submit 10 consecutive full analytical reports will then be
permitted to comply with the abridged analytical report requirements. We currently require a full
analytical report to contain detailed and substantive documentation that allows us to confirm the
analysis was performed correctly. Moreover, information in a full analytical report would allow
us to review each analytical step in the test and confirm the test results, if necessary. The
abridged analytical report would include a fraction of the amount of information required in a
full analytical report. We assume the burdens to compile and to review an abridged analytical
report to be between 25 percent and 33 percent of the burdens to compile and review a full
analytical report. Participating labs subject to abridged analytical report requirements would still
be required to maintain records of all information required in a full analytical report. As a check
of participating labs subject to abridged analytical report requirements, we would occasionally
audit information required in a full analytical report.
All cost-savings from allowing abridged analytical reports would come from analytical
reports of tests of human and animal food offered for import covered under the proposed rule,
because testing results are often submitted as part of testimony for foods under DWPE. There
would be no cost-savings generated from abridged analytical reports for tests of shell eggs,
sprouts, bottled water or other food subject to specific testing requirements because there is no
current requirement to submit these analytical reports.

43

We use the burden estimates for industry to compile a full analytical report assuming the
efficiency gains from the proposed rule’s clarifying requirements have been realized. Thus, the
time to compile a full analytical report would fall from 4 hours to 2.7 hours in the lower bound
and fall from 8 hours to 5.3 hours in the upper bound. We multiply the fully loaded wage of a
Food Scientist and Technologist of $69.22 to obtain the cost to compile a full analytical report of
between about $185 (2.7 hours x $69.22 = $184.91) and $370 (5.3 hours x $69.22 = $369.83).
Similarly, we use the burden estimates for us to review a full analytical report assuming the
efficiency gains from the proposed rule’s clarifying requirements have been realized. Thus, the
time we spend reviewing a full analytical report would fall from 2.83 hours to 1.89 hours. We
multiply by the fully loaded hourly wage for an ORA reviewer of $116.75 and obtain the cost to
review a full analytical report of about $221 (1.89 hours x $116.75 = $220.66).
We assume the cost to compile an abridged analytical report and the cost to review an
abridged analytical report ranges between 25 percent and 33 percent of the cost to compile and
the cost to review a full analytical report. Consequently, we estimate the costs for industry to
compile an abridged analytical report would be between about $46 (25 percent x $184.91 =
$46.23) and $122 (33 percent x $369.83 = $122.04), and costs for us to review an abridged
analytical report would be between about $55 (25 percent x $220.66 = $55.16) and $73 (33
percent x $220.66 = $72.82). In Tables 13a and 13b we report the costs to compile and review a
full analytical report and an abridged analytical report, both incorporating the cost-savings from
the proposed rule’s clarification discussed in the previous section.
Table 13a: Cost for industry to compile an abridged analytical report - net of the efficiency
gains from the proposed rule’s clarifications
Lower bound

44

Upper bound

Cost to compile a full analytical report (net
of efficiency gains from clarifications)

$184.91

$369.83

Cost to compile an abridged analytical report

$46.23

$122.04

Table 13b: Cost for us to review an abridged analytical report – net of the efficiency gains
from the proposed rule’s clarifications

Cost for us to review a full analytical report
(net of efficiency gains from clarifications)
Cost for us to review an abridged analytical
report

Lower bound

Upper bound

$220.66

$220.66

$55.16

$72.82

3. Total Cost-savings from allowing abridged reporting
We estimate the annual cost-savings for industry to compile abridged analytical reports
and for us to review abridged analytical reports as the difference between the costs to compile
between 10,708 and 15,110 full analytical reports at between $184.91 and $369.83 per report and
the costs to compile between 10,708 and 15,110 abridged analytical reports at between $46.23
and $122.04 per report, less the costs to compile 10 consecutive successful full analytical reports
at the cost of a full analytical report for between 4 and 25 participating labs that we expect
would qualify for abridged reporting. We report the 5th percentile, mean and 95th percentile
estimates of the cost-savings for us and industry from allowing abridged reporting in Table 14.

Table 14: Cost savings from allowing abridged reporting
5th percentile
Mean estimate
estimate
Annual cost savings accrued to
industry from compiling abridged
$1,287,201
$2,500,718
reports for tests food offered for import
covered under the proposed rule
Annual cost savings accrued to us from
$1,717,446
$2,027,155
reviewing abridged reports for tests of
45

95th percentile
estimate
$3,814,052

$2,375,194

food offered for import covered under
the proposed rule
4.

Cost-savings from reduced burdens to review analytical reports of tests of human and
animal food offered for import covered under the proposed rule due to improvements
to the current management systems
We would improve upon current management systems to administer the requirements of

the program. Improvements in the management systems would expedite our processes for
creating work assignments, including identifying technical lead panels, routing analytical reports
to the labs most appropriate for reviews, notifying labs and reviewers of new work activities,
identifying and convening expert panel assignments and for closing out and reopening reviews of
analytical reports. In addition, improvements in current management systems would facilitate
retrieval of information on participating labs from previous analytical reports, including
validation and verification studies, and other relevant information on the participating labs’
qualifications. Once these improvements have become operational we expect a reduction in the
amount of time required to review an analytical report. While this would not be a cost-savings
attributable to requirements of the proposed rule per se, we adjust current baseline analytical
report review times by the new lower review times that would results from the one-time costs of
establishing the labs program, discussed later in the analysis.
We expect the proposed rule, if finalized, would reduce the time to review an abridged
analytical report uniformly by between 10 percent and 25 percent. We apply the estimated
percent reduction in review time to the costs of reviewing abridged analytical reports of tests of
human and animal percent food offered for import covered under the proposed rule in a Monte
Carlo simulation to obtain the 5 percent, mean and 95 percent estimates of the annual cost-

46

savings from improvements in the management systems. These cost savings are reporting in
Table 15.
Table 15: Cost savings to review analytical reports of tests of human and animal food
offered for import covered under the proposed rule with the labs program’s improved
management systems
5th percentile estimate

Mean estimate

95th percentile estimate

$83,542

$143,716

$212,649

5. Total cost-savings from the proposed rule
We use a Monte Carlo simulation to add together the cost-savings to industry and FDA
from clarifying submission and review processes, allowing abridged reporting, and
improvements in the management systems with the establishment of the labs program to obtain
estimates of the 5th percentile, mean and 95th percentile of the cost-savings accrued to industry
and to us. We report the total cost savings from the proposed rule in Table 16.
Table 16 Total cost-savings from the proposed rule
5th percentile
estimate
$2,202,588
Total industry cost savings
Total FDA cost savings
Total cost savings

$3,988,816

95th percentile
estimate
$5,834,263

$2,362,103

$3,117,496

$3,870,013

$5,128,894

$7,106,313

$9,180,785

Mean estimate

6. Improved Test Performance
The proposed requirements to maintain accreditation to the ISO/IEC 17025 standard for
proficiency testing, and for verifying and validating methods may provide quality assurance for
47

testing methods. Evidence of a positive effect of lab accreditation on proficiency testing (PT)
performance is somewhat mixed. For example, in a statistical analysis of 50 randomly selected
sets of PT for food analysis conducted in 2006, Thompson, et al. (2009) found no statistical
effect of a methods’ accreditation status on PT performance (Ref. 9). However, in a later study of
Canadian labs, Middlebrook (2017) did find evidence that accredited labs outperform nonaccredited labs when comparing randomly selected PT results for the two groups. Middlebrook
found that the percentage of Questionable and Unsatisfactory performance was higher for nonaccredited labs than for accredited labs (Ref. 3). For example, Middlebrook reports that 3.42
percent of PT outcomes were Unsatisfactory for accredited labs while 6.19 percent of outcomes
were Unsatisfactory for unaccredited labs, where Unsatisfactory was defined as greater than 3
standard deviations from the mean. Moreover, Middlebrook reports that 4.91 percent of
outcomes were Questionable for accredited labs while 6.12 percent of outcomes were
Questionable for unaccredited labs, where Questionable was defined as between 2 and 3 standard
deviations from the mean. Diagnostic statistics indicate the differences reported in the PT
performance outcomes for accredited and unaccredited labs are statistically significant.
Unlike previous studies, Middlebrook controls for experience with PT participation and
found evidence that some (but not all) of the difference in PT performance could be explained by
labs’ familiarity with PT. Middlebrook attributes findings from other studies that find no
statistically significant differences between the PT performances of accredited and unaccredited
labs to inability to control for familiarity with the PT scheme. We assume there is no difference
between the performance of accredited and unaccredited labs in the US and in Canada and use
Middlebrook findings of better PT performance by accredited labs compared to unaccredited labs
to estimate the reduced number of false negatives and false positives from tests of human and
48

animal food subject to the proposed rule. Specifically, we assume the rate of false negatives and
false positives for accredited labs is distributed uniformly between the lower bound of 3.42
percent and upper bound of 8.33 percent (3.42 percent Unsatisfactory + 4.91 percent
Questionable = 8.33 percent), while that for unaccredited labs is distributed uniformly between
the lower bound of 6.19 percent and the upper bound of 12.31 percent (6.19 percent
Unsatisfactory + 6.12 percent Questionable = 12.31 percent).
To estimate the baseline performance rate for tests of human and animal food covered
under the proposed rule we multiply the weighted percentages of uniformly distributed
Unsatisfactory and Questionable outcomes obtained from accredited and unaccredited labs, by
the corresponding uniformly distributed shares of tests performed by those labs (accredited labs
perform between 94.8 percent and 100 percent of tests of human and animal food offered for
import covered under the proposed rule). Similarly, we estimate the baseline performance for
tests of shell-eggs, sprouts and bottled water subject to specific testing requirements covered
under the proposed rule by multiplying the weighted percentage of uniformly distributed
Unsatisfactory and Questionable outcomes obtained from accredited and unaccredited labs, by
the corresponding uniformly distributed shares of tests performed by those labs (accredited labs
perform between 50.9 percent and 95.0 percent of tests for shell-eggs, sprouts and bottled water
subject to specific testing requirements covered under the proposed rule).
Because we estimate that only a small number of tests of sprouts and bottled water
subject to testing requirements would require the use of a participating lab (15 tests of sprouts
per year, and 10 to 15 tests of bottled water per year), and the number of tests of other foods
subject to testing are covered under the proposed rule is expected to be small, for the remainder
of the benefits analysis we assume the results obtained for tests of shell-eggs subject to specific
49

testing requirements would also cover all other tests of human or animal food subject to testing
covered under the proposed rule.
We report the baseline test performance rate variables and the expected test performance
rate variables under the proposed rule, if finalized, that we use to estimate improved test
performance in Tables 17a and 17b. We request comment on these assumptions.
Table 17a: Variables used to estimate improved test performance for tests of human and
animal food offered for import covered under the proposed rule
Lower
Middle
Upper
bound
estimate
bound
Rate of unsatisfactory and questionable tests performed by labs
3.42%
5.88%
8.33%
accredited to ISO/IEC 17025
Rate of unsatisfactory and questionable tests performed by labs
6.19%
9.25%
12.31%
not accredited to ISO/IEC 17025
Share of tests of food offered for import currently performed by
0.00%
3.7%
5.20%
labs not accredited to ISO/IEC 17025
Baseline test performance rate

3.42%

5.98%

8.54%

Test performance rate with the proposed rule

3.42%

5.88%

8.33%

Table 17b: Variables used to estimate improved test performance for tests of shell-eggs,
bottled water, sprouts and other foods subject to specific testing requirements covered
under the proposed rule1
Lower
Middle
Upper
bound
estimate
bound
Rate of unsatisfactory and questionable tests performed by
3.42%
5.88%
8.33%
labs accredited to ISO/IEC 17025
Rate of unsatisfactory and questionable tests performed by
6.19%
9.25%
12.31%
labs not accredited to ISO/IEC 17025
Share of tests of shell-eggs and bottled water subject to
specific testing requirements currently performed by labs not
4.0%
17.5%
31.0%
accredited to ISO/IEC 17025
Baseline test performance rate

3.53%

6.55%

9.56%

Test performance rate with the proposed rule

3.42%

5.88%

8.33%

1

We assume the results obtained for tests of shell-eggs subject to specific testing requirements would also cover
tests of sprouts and bottled water and other food subject to specific testing requirements.

50

We apply Monte Carlo methods to subtract the baseline performance from the expected
performance with the proposed rule reported in Tables 17a and 17b to simulate the means, 5th
percentile estimates, and 95th percentile estimates of the increase in test performance from the
proposed rule. We assume uniform distributions between the upper and lower bounds for the
variables reported in Tables 17a and 17b and estimate the change in test performance following
the proposed rule to be between -3.29 percent and 3.44 percent, with an average of 0.10 percent
for tests of human and animal food offered for import covered under the proposed rule, and
between -3.02 percent and 4.43 percent, with an average of 0.67 percent increase in test
performance for tests of shell-eggs, sprouts, bottled water and other food subject to testing
covered under the proposed rule. We report estimates of the potential changes in test
performance following publication of the proposed rule, if finalized, in Table 18. While the mean
estimate of test performance reported in Table 18 is consistent with the effect of the proposed
rule, there may be some variation as reported in the five percent and 95 percent estimates
attributable to accredited lab test performance, independent of the effect of the proposed rule. We
request comment on these estimates.
Table 18: The estimated change in test performance
5 percent
estimate
Tests of human and animal food offered for
-3.29%
import covered under the proposed rule
Tests of shell-eggs, sprouts and bottled water
-3.02%
subject to specific testing requirements1

Mean

95 percent
estimate

0.10%

3.44%

0.67%

4.43%

1

We assume the results obtained for tests of shell-eggs subject to specific testing requirements would also include
tests of sprouts and bottled water and other food subject to specific testing requirements.

a. Fewer false negative results for tests of human and animal food subject to the proposed
rule

51

We apply Monte Carlo methods and assume the variables for the increase in test
performance from the proposed rule and the current baseline number of negative findings are
uniformly distributed between the upper and lower bounds. We consider that each test applies to
an entire shipment of the corresponding human or animal food. We refer to quantities of human
or animal food offered for import in terms of “lines” of human or animal food, with the line
reflecting the quantity of human or animal food offered for import covered under the proposed
rule that would be represented by a test result. We estimate the reduction in the number of lines
of human or animal food offered for import covered under the proposed rule with false negative
test results would range from -419 to about 420, with a mean reduction of 13, and the reduction
in the number of shipments of shell-eggs, sprouts, and bottled water and other food subject to
testing covered under the proposed rule with false negative test results would range from -132 to
217, with a mean of 28.
i.

Fewer contaminated servings of human and animal food offered for import covered
under the proposed rule that would reach the consumer

We apply the reduction in the number of false negative tests of human and animal food
offered for import covered under the proposed rule to the estimated number of food servings in a
line of imported food. We estimate the number of servings in a line of imported food using
internal 2016 Operational and Administrative System for Import Support (OASIS) data on the
number of kilograms in a line by industry code. We convert the number of kilograms to servings
by applying estimates of the Reference Amounts Customarily Consumed reported in the Serving
Size regulations for the food category that closely corresponds to the industry code reported in
the OASIS data (Ref. 10). We then apply an estimate of the probability that a serving from a line
is contaminated given the composite sample from the corresponding line tests positive to
52

estimate the number of contaminated servings in a line of imported food with false negative test
results.
We obtain the mean numbers of kilograms in an imported line for each of 26 industry
codes reported in OASIS for 2016. The 26 industry codes represent most of all the imported
food; we include in the data only those industry codes with a large fraction of lines measured in
kilograms and exclude a small number of industry codes where the lines are measured in a unit
other than kilograms (for example, beverage categories may be reported by volume, such as
liters). After an initial cleaning of the data to account for lines reported with $0 value or with 0
kg quantity, we use two criteria to eliminate outliers that would have quantities overstated
because of observed systematic input errors. We then calculate the values per kg for each line
and either 1.) eliminate lines with values per kg that lie outside the interval $0.01 and $100, or
2.) eliminate lines with values per kg that lie outside the interval $0.001 and $1,000. We sampled
the eliminated data to determine if they were likely candidates for systematic input error and
found that to be the case. There are between about 8.5 and 8.7 million lines of imported human
and animal food in the remaining data, depending on the cleaning criterion.
We apply the average Reference Amount Customarily Consumed for the food categories
reported in the serving size regulations to the mean number of kilograms found for the closely
corresponding industry code from the OASIS data and compute an average number of servings
in a line for each industry code. We then aggregate across all industry codes and compute the
weighted average number of servings in an imported line using the industry code’s share of the
total lines as the weights for each data set.
We assume the sample collected is randomly selected and representative of the imported
line. We adjust the average number of servings in a line to account for the probability that a
53

serving from a line is contaminated given that a composite sample of that line tests positive.
Guidance recommends collecting up to 60 sub-samples per sample, depending on the analysis of
interest. If just one of the sub-samples is contaminated, the composite sample may test positive –
even if the remaining sub-samples are free of contamination. Without additional information, we
assume that 50 percent of sub-samples contain some contaminated servings given the composite
sample tests positive. We request comment on the estimated distribution of contamination in subsamples given a composite sample tests positive.
Not all servings in a contaminated sub-sample of food are necessarily contaminated. For
example, a sub-sample weighing 1 Kg would contain approximately 36 servings of food with an
average serving size of 60 grams (1,000 grams / 60 grams per serving = approximately 36
servings). Without additional information, we assume that 50 percent of servings in a sub-sample
are contaminated given a contaminated sub-sample. We multiply the probabilities together and
estimate that 25 percent of servings in a line are contaminated when a composite sample of that
line tests positive (50 percent of sub-samples are contaminated x 50 percent of servings in a subsample that are contaminated = 25 percent).
We apply Monte Carlo methods to multiply the average number of servings in an
imported line to the reduction in the number of lines with false negative test results and adjust by
the probability that a serving in a line is contaminated given that the composite sample tests
positive. We assume the number of servings in a line is lognormally distributed with the mean
and standard deviation themselves uniformly distributed between the means and standard
deviations obtained using the different data cleaning criteria. We assume the reduction in the
number of false negative results of tests of human and animal food offered for import covered
under the proposed rule is uniformly distributed between the lower and upper bounds reported
54

earlier. Consequently, as shown in Table 19, we estimate that between -61,867,944 and
69,420,307 contaminated servings, with a mean of 4,202,254 servings would be avoided from
improved tests of human and animal food offered for import covered under the proposed rule. In
Table 19 we report the variables used to estimate the number of contaminated servings avoided
from improved tests of human and animal food offered for import covered under the proposed
rule.
Table 19: The variables used to estimate the number of contaminated servings avoided
from improved tests of human and animal food offered for import covered under the
proposed rule
Lower bound

Mean

Upper bound

The total number of lines with
negative findings from tests of
human and animal food offered for
import covered under the proposed
rule

9,967

12,373

14,779

The reduced number of false
negative lines

-419

13

420

582.85

1,312,864

3,172,534

Average number of servings per line
Probability that a serving in a line is
contaminated given that a composite
sample tests positive
Number of contaminated servings
avoided from improved tests of
human and animal food offered for
import covered under the proposed
rule

0.25

-67,906,409

55

4,202,254

63,001,990

ii.

Fewer contaminated servings of shell-eggs, sprouts and bottled water and other food
subject to testing covered under the proposed rule
We assume that the number of eggs contained in an egg shipment has not changed since

publication of the Shell egg Final rule in 2009. We estimate the number of servings of shell-eggs
in a shipment represented by a test result from information contained in the regulatory impact
analysis of shell-egg final rule. The shell-egg final rule reports that approximately 3,328 egg
farms subject to testing requirements produce about 72,113,000 thousand eggs per year, or
approximately 21,668.57 thousand eggs per farm. We use information from Table 6 of the shellegg final rule to estimate a weighted average of approximately 39,785 hens per farm subject to
shell-egg test requirements. We obtain an average annual production per hen of approximately
545 eggs (21,668,570 eggs per farm per year / 39,785 hens per farm = 545 eggs per hen) for
daily production of a hen of about 1.49 eggs (545 eggs / 365 days). Multiplying the daily
production per hen by the number of hens per farm (39,785) we estimate an average of 59,366
eggs produced daily per farm. We then divide by the weighted average number of hen houses per
farm of 2.21, derived from Table 6 in the final shell-egg rule, to obtain 26,839 eggs per house
produced daily.
We assume a range of between 1 and 2 days-worth of egg production would be
represented by a sample of shell-eggs subject to testing requirements. Consequently, we estimate
that the size of a shipment of shell-eggs represented by a test is between 26,839 (26,839 eggs per
hen house daily x 1 day = 26,839 eggs), and 53,679 shell eggs (26,839 eggs per hen house daily
x 2 days = 53,679 eggs). We assume one egg per serving and apply the probability that a serving
in a shipment of shell-eggs is contaminated given the composite sample tests positive (0.25)
described earlier. Because of the estimated small numbers of tests of bottled water, sprouts and
other food subject to specific testing requirements we assume the number of servings in a
56

shipment of these foods is the same as the number of servings in a shipment of shell-eggs. We
ask for comment on this assumption.
We apply Monte Carlo methods to multiply the number of servings of shell-eggs in a
shipment (between 26,839 and 53,679 shell eggs per shipment) to the reduction in the number of
false negative test results of shell-eggs (between -132 and 217 shipments). We adjust by the
probability that a serving of shell-eggs in a shipment is contaminated given the composite sample
tests positive (0.25). We assume the reduction in the number of false negative results of tests of
shell-eggs and bottled water subject to testing requirements is uniformly distributed between the
5th percentile and 95th percentile estimates reported earlier, and that the number of servings of
shell-eggs in a shipment is uniformly distributed between the one and two days-worth of
production for a hen house. Consequently, we estimate that between -1,361,365 and 2,174,758
contaminated servings of shell-eggs subject to specific testing requirements with a mean of
283,975 would be avoided from improved test performance. We report the variables used to
obtain the number of contaminated servings of shell-eggs subject to specific testing requirements
that would be avoided in Table 20.
Table 20: The variables used to estimate the number of contaminated servings avoided
from better tests of shell-eggs, sprouts and bottled water and other food subject to specific
testing requirements
Lower bound

Mean

Upper bound

The total number of negative findings for
shell-eggs, sprouts and bottled water
subject to test requirements

1,334

4,197

7,060

The reduced number of false negative
findings

-132

28

217

57

Average number of servings of shelleggs per shipment represented by a test
Probability that a serving from the
corresponding shipment would test
positive given the composite sample tests
positive
Number of contaminated servings
avoided from better test performance of
shell-eggs, sprouts and bottled water and
other food subject to covered testing

26,839

40,259

53,679

0.25

-1,361,365

283,975

2,174,758

1

We assume the results obtained for tests of shell-eggs subject to test requirements would also cover tests of sprouts
and bottled water and other food subject to covered testing requirements.

iii.

Fewer illnesses from fewer contaminated servings on the market
We use the endpoints of the range of the estimated number of contaminated servings that

would be avoided as inputs into separate runs of FDA’s Food Handling Practices Model (FHPM)
to estimate the range in the number of illnesses that would be avoided from the proposed rule, if
finalized (Ref. 11). The FHPM allows for food contaminated at the source to either be eliminated
prior to consumption or to grow and become even more of a hazard. We modified the baseline
scenario in the FHPM, which is calibrated to reproduce the number of foodborne illnesses
reported in Scallan, et al., by assuming that each endpoint of the range of the number of
contaminated servings of human and animal food offered for import covered under the proposed
rule is distributed uniformly across all seven food categories used in the model and that each
serving is contaminated with probability 1. In simulations using endpoints of the range of the
number of avoided contaminated servings of shell-eggs, sprouts and bottled water and other food
subject to testing covered under the proposed rule, we assume each serving is contaminated with
Salmonella with probability 1. We adjust the baseline probabilities of being contaminated at
58

retail and household levels to be zero so that the outputs contain only the number of illnesses
caused by contaminated servings of human and animal food offered for import covered under the
proposed rule upon import, and by contaminated shell-eggs, sprouts and bottled water and other
food subject to testing covered under the proposed rules upon production.
The five percent estimate of the number of illness computed by FHPM using the 5
percent estimate of contaminated servings of human and animal food offered for import covered
under the proposed rule is between about -4,408 to -4,199. When we input the mean number of
contaminated servings of human and animal food offered for import covered under the proposed
rule, the FHPM calculates between 264 and 321 illnesses would be avoided annually from the
proposed rule. When we input the 95 percent estimate of the number of avoided contaminated
servings of human and animal food offered for import covered under the proposed rule, the
FHPM calculates between 7,713 and 4,938 illnesses would be avoided annually from better tests
of human and animal food offered for import covered under the proposed rule.
We assume the number of illnesses avoided is distributed as a Pert, with the lower value
equal to the number of illness avoided when using the 5 percent estimate of contaminated
servings as an input into the FHPM, the most likely value equals the number of illnesses avoided
when we use the mean estimate of contaminated servings, and the upper value equal to the
number of illnesses avoided when we use the 95 percent estimate of contaminated servings. We
assume the lower value, mean and upper value are themselves uniformly distributed between the
5 percent and 95 percent estimates of those numbers reported above. We then apply Monte Carlo
methods to simulate the number of illnesses avoided from the proposed rule to range from -2,559
and 3,114, with a mean of 282 avoided illnesses from better tests of human and animal food
offered for import covered under the proposed rule.
59

The estimated number of illnesses avoided when the five percent estimate of the number
of contaminated servings of shell-eggs, sprouts and bottled water is used as an input in the
FHPM is between -111 to -80, with a mean of -96. When we input the mean number of
contaminated servings of shell-eggs into the FHPM we obtain between 13 and 28 illnesses
avoided, with a mean of 21 illness avoided. When we input the 95 percent estimate of the
number of contaminated servings of shell eggs avoided into the FHPM we obtain between
128and 170, with a mean of 149 illnesses avoided from improved test performance.
We assume the number of illnesses avoided is distributed as a Pert, with the lower value
equal to the number of illness avoided when we use the 5 percent estimate of contaminated
servings of eggs avoided, the most likely value equal to the number of illnesses avoided when we
use the mean estimate of the number of contaminated servings of eggs avoided, and the upper
value equals the number of illnesses avoided when we use the 95 percent estimate of the number
of contaminated servings of eggs avoided as an input into the FHPM. We assume the lower
value, mean and upper value in the Pert distributions are themselves uniformly distributed
between the 5th percentile and 95th percentile estimates reported earlier, with a most likely value
as the mean number of illnesses avoided. We apply Monte Carlo methods to estimate the number
of illnesses avoided from improvements in tests of shell-eggs would range from -52 to 99, with
an average number of 23. We report the results of the simulation in Tables 21a and 21b.
Table 21a: Annual illnesses avoided from improved tests of human and animal food offered
for import covered under the proposed rule
5th
95th
Mean
percentile
percentile
estimate
estimate
estimate
Illnesses estimated by the FHPM assuming the 5
percent estimate of the number of avoided
60

(4,408)

(4,304)

(4,199)

contaminated servings of food offered for import
covered under the proposed rule
Illnesses estimated by the FHPM assuming the mean
estimate of the number of avoided contaminated
servings of food offered for import covered under the
proposed rule
Illnesses estimated by the FHPM assuming the 95
percent estimate of the number of avoided
contaminated servings of food offered for import
covered under the proposed rule
Total annual illnesses avoided1

264

293

321

4,713

4,826

4,938

(2,559)

282

3,114

1

Total avoid illnesses are distributed as a Pert, with a lower value, most likely value, and upper value distributed
uniformly between the 5 percent and 95 percent estimates reported in the first three rows of this table

Table 21b: Annual illnesses avoided from improved tests of shell-eggs, sprouts and bottled
water and other food subject to test requirements
5th
95th
Mean
percentile
percentile
estimate
estimate
estimate
Illnesses estimated by the FHPM assuming the 5
percent estimate of the number of contaminated
servings
Illnesses estimated by the FHPM assuming the mean
estimate of the number of contaminated servings
Illnesses estimated by the FHPM assuming the 95
percent estimate of the number of contaminated
servings
Total annual illnesses avoided1

(111)

(96)

(80)

13

21

28

128

149

170

(52)

23

99

1

Total avoid illnesses are distributed as a Pert, with a lower value, most likely value, and upper value distributed
uniformly between the 5 percent and 95 percent estimates reported in the first three rows of this table

iv.

Avoided Quality-adjusted Life-day (QALDs) from fewer contaminated servings on
the market
We estimate the range in the value of illnesses avoided from improved tests of human

and animal food offered for import covered under the proposed rule from the proposed rule using
QALDs. The QALDs are derived from the value of a statistical life (VSL) of $4.6 million, $9.9
61

million and $15.0 million. We inflate to 2016 dollars the mean value of a QALD (one that is
derived from a VSL of $9.9 million) from a case of a foodborne illness reported in Minor, et al.
of $1,113 (Ref. 12), consistent with Department of Health and Human Services Guidelines and
obtain a QALD of $1,137. We estimate a lower bound by assuming a VSL of $4.6 million and
then scaling the mean value reported above (4.6 million / 9.9 million x $1,137) to obtain a
QALD of $528 per foodborne illness. We estimate an upper bound by assuming a VSL of $15
million and then scaling the mean value reported above ($15.0 million / $9.9 million x $1,137) to
obtain a QALD of $1,723 per foodborne illness. We use this range to estimate the value of
illnesses avoided from improved tests of human and animal food offered for import covered
under the proposed rule.
We use the value of a QALD from a case of Salmonellosis obtained from Minor et al
(Ref.12) to estimate the value of illnesses avoided from improved tests of shell-eggs subject to
testing requirements. We inflate to 2016 dollars the mean value of a QALD (one that is based on
a VSL of $9.9 million) from a case of a Salmonellosis reported in Minor, et al. of $6,196,
consistent with Department of Health and Human Services Guidelines, to obtain a QALD of
$6,329. We estimate a lower bound by assuming a VSL of $4.6 million and then scaling the
mean value reported above (4.6 million / 9.9 million x $6,329) to obtain a QALD of $2,941 per
case of Salmonellosis. We estimate an upper bound by assuming a VSL of $15 million and then
scaling the mean value reported above ($15.0 million / $9.9 million x $6,329) to obtain a QALD
of $9,590 per case of Salmonellosis.
We use the mean value of $1,592 for a QALD of an illness attributable to contaminated
sprouts obtained from the Regulatory Impact of Analysis of Produce Safety Final Rule to
estimate the value of illnesses avoided from improved tests of sprouts subject to testing
62

requirements. We inflate to 2016 dollars, consistent with Department of Health and Human
Services Guidelines, to obtain a QALD of $1,626 per illness attributable to sprouts. We estimate
a lower bound by assuming a VSL of $4.6 million and then scaling the mean value reported
above (4.6 million / 9.9 million x $1,626) to obtain a QALD of $756 per illness attributable to
sprouts. We estimate an upper bound by assuming a VSL of $15 million and then scaling the
mean value reported above ($15.0 million / $9.9 million x $1,626) to obtain a QALD of $2,464
per illness attributable to sprouts. We assume the value of a QALD from an illness attributable to
bottled water would fall within the ranges of those used for a case of Salmonellosis and for an
illness attributable to sprouts. We report the ranges in the values of a QALD from improved tests
in Table 22.
Table 22: The value of a QALD per illness from human and animal food offered for import
covered under the proposed rule and from shell-eggs, sprouts, and bottled water subject to
specific testing requirements
Lower
Middle
Upper
bound
estimate
bound
QALD per illness from human and animal food
offered for import covered under the proposed
$528
$1,137
$1,723
rule1
QALD per case of Salmonellosis from shell$2,941
$6,329
$9,590
eggs subject to test requirements2
QALD per illness attributable to sprouts subject
$756
$1,626
$2,464
to test requirements3
1

Mean QALD per illness from Minor et al and inflated to 2016 dollars per DHHS Guidance
Mean QALD per case of Salmonellosis from Minor, et al and inflated to 2016 dollars per DHHS Guidance
3
Mean case of illness attributable to sprouts obtained from the Produce Safety Final Rule and inflated to 2016
dollars per DHHS Guidance
2

We multiply the values of QALD by the numbers of illnesses avoided from improved
tests of human and animal food offered for import covered under the proposed rule and from
shell-eggs, sprouts, and bottled water and other food subject to testing covered under the
63

proposed rule using Monte Carlo methods and estimate the mean, 5 percent, and 95 percent
estimates of the total avoided QALDs. We obtain the avoided QALD from improved tests of
human and animal food offered for import covered under the proposed rule and from shell-eggs,
sprouts and bottled water and other food subject to testing covered under the proposed rule and
add them together to obtain the total avoided QALDs from fewer false negative test results. We
report the means, 5 percent estimates and 95 percent estimates in the Table 23.
Table 23: Annual avoided QALDs from improved tests

Avoided QALDs from improved tests of human and
animal food offered for import covered under the
proposed rule
Avoided QALDs from improved tests of shell-eggs,
sprouts, and bottled water and other food subject to
covered testing
Total avoided QALDs from improved tests from the
proposed rule

5th percentile
estimate

Mean
estimate

($3,035,888)

$317,377

95th
percentile
estimate
$3,820,837

($273,057)

$108,254

$503,521

($2,875,483)

$425,631

$3,923,682

b. Avoided revenue losses from fewer false positive test results
The proposed rule may also result in fewer false positive test results for human and
animal food offered for import covered under the proposed rule and shell-eggs, sprouts, and
bottled water and food subject to testing covered under the proposed rule. A false positive test
result for human and animal food offered for import covered under the proposed rule would
result in refusing entry into the US market of uncontaminated human and animal food. A false
positive test result for shell-eggs, sprouts and bottled water and other food subject to testing
covered under the proposed rule would prevent uncontaminated shell-eggs, sprouts and bottled

64

water and other food from entering the market and could also set in motion a range of corrective
actions required by shell-egg, sprouts and bottled water producers.
We assume the upper bound on the cost of a false positive test result would be the full
wholesale value of the corresponding shipment of human or animal food offered for import
covered under the proposed rule or shell-eggs, sprouts or bottled water subject to specific test
requirements. The full wholesale value of the shipment may overstate the loss to the extent that
the shipment can be reconditioned and resold. We assume the cost of reconditioning a shipment
of human or animal food offered for import covered under the proposed rule is between $500 and
$1,500, and the cost savings from fewer false positives is uniformly distributed between the
wholesale value the shipment and the cost of reconditioning the shipment. We ask for comment
on these assumptions.
i.

Avoided revenue losses from fewer false positive test results for human and animal
food offered for import covered under the proposed rule
Internal records from PLAPs for 2013-2017 indicate the annual numbers of private lab-

confirmed positive test results for human and animal food offered for import covered under the
proposed rule from 2013 through 2017 is between 331 and 741. We assume the rate of improved
test performance from the proposed rule discussed earlier would reduce the number of false
positive test results for tests of human and animal food offered for import covered under the
proposed rule by the same rate. We use 2016 OASIS data from our Office of Regulatory Affairs
to obtain the means and standard deviations of the wholesale values of imported lines for 26
categories of food cleaned using the two criteria discussed above to estimate the wholesale loss
from a false positive result from tests of human and animal food offered for import covered by
the proposed rule.
65

We estimate the lower and upper bounds of the wholesale values of an imported line by
assuming a lognormal distribution, with mean and standard deviation themselves random
variables distributed uniformly between the means and standard deviations obtained using the
two data cleaning criteria discussed earlier. We report the 5 percent and 95 percent estimates of
the wholesale value of the lognormal distribution described above obtained using Monte Carlo
methods. We report the upper and lower bounds and medium values of the variables used to
estimate the avoided retail loss from fewer false positive test results for human and animal food
offered for import covered under the proposed rule in Table 24.

Table 24: Variables used to estimate revenue losses avoided from fewer false positive test
results for human and animal food offered for import covered under the proposed rule
Lower
Medium
Upper
bound
value
bound
The number of lines of human or animal food offered
for import covered under the proposed rule that test
331
536
741
positive
The number of fewer false positives for lines of
human and animal food offered for import covered
-18
0.55
20
under the proposed rule
Wholesale value per line of imported human and
$130
$9,653
$37,232
animal food
.
ii.

Avoided revenue losses from fewer false positive test results for shell-eggs, sprouts
and bottled water subject to testing requirements
We assume the current baseline rate of positive test results for shell-eggs, sprouts, and

bottled water and other food subject to testing requirements under the proposed rule is the same
as the current baseline rate of positive test results for human and animal food offered for import
covered under the proposed rule. We request comment on this assumption. Using the values from
Table 24, we estimate the rate of positive test results for shell-eggs, sprouts and bottled water
66

ranges from 3.21 percent to 4.77 percent of all tests (1 – (741 positive test results / (15,520) total
test results = 3.21 percent; and 1 – (331 positive test results / (10,298)) total test results = 4.77
percent). We multiply the rates of positive test results by the total number of tests of shell eggs,
sprouts and bottled water subject to testing requirements shown in Table 20 to estimate the
annual number of positive findings for shell-eggs to range from 43 to 337 (3.21 percent x 1,334
total tests of shell eggs = 43; and 4.77 x 7,060 total tests of shell eggs = 337). We then multiply
by the estimated rate of improved test performance due the proposed rule to obtain the reduction
in the number of false positives from the proposed rule. We assume uniform distributions for the
total number of positive test results and for the rate of improved test performance from the
proposed rule, if finalized, and report the mean reduction in false positive test results (about 1
test), the lower bound reduction in false positive test results represented by the 5 percent level (-6
tests), and the upper bound reduction in false positive test results represented by the 95 percent
level (9 tests) in Table 25.
We obtain the wholesale value of a shipment that corresponds to a test of shell-eggs
subject to specific testing requirements by multiplying the number of shell-eggs in a shipment,
from Table 20, by the price per egg received by the egg farm. We obtain average monthly farm
prices received for a dozen eggs from the USDA Farm Price Received report for 2016 (Ref. 13).
We find the mean monthly farm price received for a dozen eggs for 2016 to be about $0.77, with
a standard deviation of about $0.26. We assume a lognormal distribution of the farm price
received for a dozen eggs, divide by 12 to obtain the price per egg and multiply by the number of
eggs in a shipment to obtain the wholesale value of a shipment of shell-eggs. We do not know
the wholesale values of shipments of sprouts and bottled water and assume they are the same as
the wholesale value of a shipment of shell-eggs. We ask for comment on this assumption. We
67

report the mean wholesale value of a shipment (about $32,000), the lower bound represented by
the 5 percent level (about $20,500), and the upper bound represented by the 95 percent level
(about $41,000) in Table 25.
Table 25: Variables used to estimate the avoided revenue losses from fewer false positive
test results for shell-eggs, sprouts, bottled water and other food subject to covered testing1
Lower
Medium
Upper
bound
estimate
bound
The number of shipments subject to shell-eggs, sprouts
43
190
337
and bottled water testing requirements that test positive
Reduction in false positives for shipments of shell-eggs,
sprouts and bottled water subject to testing requirements

(6)

1

9

Wholesale value per shipment of shell-eggs, sprouts and
bottled water subject to testing requirements

$20,543

$30,815

$41,087

1

Because the estimated number of tests of shell-eggs subject to specific testing requirements covered under the
proposed rule is so much larger than the estimated number of tests of sprouts, bottled water and other food subject to
testing covered under the proposed rule we assume the variables used to estimate the latter are included in the
variables to estimate the former.

iii.

Total avoided revenue losses
We apply Monte Carlo methods to the random variables reported in the tables above to

simulate the 5th percentile, mean and 95th percentile estimates of the total avoided retail loss
from the reduction in false positive test results due to the proposed rule. We assume uniform
distributions between the lower and upper bounds for the number of positive test results and the
reduction in the numbers of false positive test results reported in the tables above. We assume the
wholesale values of a shipment of shell-eggs and human and animal food offered for import
covered under the proposed rule are distributed lognormally with the means and standard
deviations reported earlier. We add together the avoided revenue losses from tests of human and
animal food offered for import covered under the proposed rule and from shell-eggs, sprouts,
bottled water and other food subject to specific testing requirements to obtain the total avoided
68

revenue losses from fewer false positives. We report the means, 5th percentile estimates and 95th
percentile estimates in Table 26.
Table 26: Estimated annual avoided revenue losses from fewer false positive test results
5th
95th
Mean
percentile
percentile
estimate
estimate
estimate
Avoided revenue losses from fewer false positive
test results for human and animal food offered for
-$114,279
$2,954
$134,983
import covered under the proposed rule
Avoided revenue losses from fewer false positive
test results for shell-eggs, sprouts, bottled water
-$100,739
$20,317
$179,530
and other food subject to testing requirements
Total avoided revenue losses from fewer false
positive tests from to the proposed rule

-$188,821

$23,270.93

$253,449

7. Deterrence of unsafe food manufacturing practices due to better expected test
performance
The possibility of more positive test findings from more accurate testing by participating
labs may deter human and animal food suppliers from unsafe manufacturing practices if the
additional cost of being caught with contaminated food is greater than the additional cost of
providing safer food. The cost of a positive test finding includes any required corrective actions,
such as reconditioning, combined with the value of the lost shipment. The deterrence of unsafe
food manufacturing practices from the threat of a positive test finding is greater as the
probability of false findings decline.
When safe food practices are prevalent, we would expect a high prevalence of
contaminant-free food and the probability of a negative test finding to be high if tests are
accurate. That describes the current situation with the estimated share of negative findings from
tests of human and animal food offered for import covered under the proposed rule to be between
96 percent and 98 percent, indicating a high prevalence of food safety practices. Consequently,
69

under current conditions and assuming diminishing marginal returns we would expect the
additional costs required to increase food safety practices by manufacturers to be comparatively
high.
When baseline rates of test performance are high, we would expect the rates of false
negative and false positive test results to be low. That describes our assessment of current
baseline conditions for which we estimated rates of false positives and false negatives to be
between 3.4 percent and 8.3 percent (see the earlier discussion on improved test performance).
Consequently, we expect the additional commercial losses from even fewer false negative test
findings to be low.
With the assumed current high prevalence of food safety practices and the current high
rates of test performance, the additional costs that would be incurred by manufacturers to provide
even safer human or animal food potentially subject to more accurate testing may be close to, or
even greater than, the additional costs to the manufacturer from the greater likelihood that
contaminated food would be caught. We assume the additional costs to the manufacturer from
the lost commercial value due to fewer false negative test findings is greater than the additional
cost of providing even safer human or animal food potentially subject to even more accurate
testing, and there would be some deterrence of unsafe practices by all manufacturers affected by
the proposed rule from improved test performance.
8. Improved test reporting practices from test reporting requirements
The proposed requirement to send all analytical reports to us if they participate in the labs
program may deter possible selective reporting behavior designed to increase the likelihood of
reporting false negative test results. Selective reporting includes such practices as “testing into
compliance” (testing multiple samples and reporting the results for only those that are found to
70

be negative) and “banking negative test results” (saving negative analytic findings for later use).
Evidence from a 2009 outbreak involving peanut butter suggests the existence of behavior of
selectively reporting false negative test results (Ref. 14). We request comment on the assumption
that the requirement to send all analytical reports to us and other reporting requirements, if
finalized, will deter improper reporting of test results.

10. Total benefits of the proposed rule
We apply Monte Carlo methods to obtain the 5th percentile, mean and 95th percentile
estimates for the total cost-savings from clarifying analytical report submission and review
processes, from abridged reporting and management systems improvements and the total avoided
QALD losses and revenue losses from better tests. We report the means, 5th percentile estimates
and 95th percentile estimates of these variables and the total benefits of the proposed rule in
Table 27.
Table 27: Total benefits from the proposed rule
5th
percentile
estimate

Mean
estimate

95th
percentile
estimate

$1,043,082

$2,426,228

$3,809,375

$3,219,481

$4,629,879

$6,040,277

Cost savings from management systems
improvements

$83,542

$148,096

$212,649

Cost-savings from fewer false positives

-$188,821

$23,270.93

$253,449

-$2,875,483

$425,631

$3,923,682

Cost-savings from clarifications of the processes
for compiling and reviewing analytical reports of
tests of human and animal food offered for import
covered under the proposed rule
Cost savings from allowing abridged analytical
reporting of tests of human and animal food
offered for import covered under the proposed rule

Avoided QALD losses from fewer servings of
contaminated food available
71

Total quantified benefits

$3,708,852

$7,555,215

Deterrence of unsafe manufacturing practices by
all human and animal food suppliers affected by
the proposed rule

Unquantified

Deterrence of improper test reporting practices due
to the proposed test reporting requirements

Unquantified

$11,524,072

F. Costs of the Proposed Rule
1. Costs incurred by participating ABs
The proposed rule includes requirements for ABs to apply for recognition by FDA and to
renew that recognition periodically. The proposed rule, if finalized, would require that
recognized ABs be members of ILAC and signatories of the ILAC MRA, conform to the
ISO/IEC 17011 standard, and to renew recognition at least every 5 years. All ABs currently
considered as potential applicants already satisfy the requirements of the ISO standards and are
monitored and evaluated on an on-going basis. Additional costs that recognized ABs would incur
under the proposed rule, if finalized, include;
•

modifying existing programs and standard operating procedures for accrediting
labs to the proposed requirements and,

•

maintaining and submitting reports and other records to us.

We estimate between 5 and 80 ABs would participate in the labs program and assume a
Pert distribution with the minimum (5) as the most likely number of ABs. This yields a mean of
17.5 ABs that would participate in the labs program. The upper and lower bound cost estimates
reported in this section can be replicated by using 17.5 as the number of ABs that would incur
these costs. For estimates of the labor costs incurred by ABs and other entities described in the
72

following sections we use the mean hourly wage of a Microbiologist, a Natural Science Manager
and a Lawyer reported in the Bureau of Labor Statistics, May 2017 National Occupational
Survey under occupation codes 19-1022, 11-9121 and 23-1011 (ref. 15). We multiply these
wages by two to account of overhead to obtain fully loaded hourly wages of $75.38 for a
Microbiologist, $128.52 for a Natural Sciences Manager, and $136.44 for a Lawyer.
a. Costs for initial applications for recognition
The proposed rule, if finalized, would require ABs that wish to be recognized to submit
an application that demonstrates their qualifications to accredit labs to meet the proposed
requirements. We assume that this process would be overseen by a lawyer and a natural science
manager and estimate that it would take a total of between 40 and 80 hours to compile all the
relevant information, prepare for an assessment and complete the initial application process.
Consequently, we estimate the cost incurred by ABs for submitting applications for recognition
to range from about $92,736 (40 hours x ($136.44 per hour + $128.52 per hour) / 2) x 17.5 ABs
= $92,736) to about $185,472 (80 hours x $136.44 per hour + $128.52 per hour) / 2) x 17.5 ABs
= $185,472). We estimate the annualized costs for initial recognition discounted at seven percent
over 10 years to range from $12,340 to $24, 679. When we assume a three percent discount rate
over 10 years the annualized costs range from $10,555 to $21,109.
b. Costs for applications for renewal and maintenance of recognition
The proposed rule, if finalized, would require an AB to apply for renewal of recognition
at the end of their term of recognition, which for purposes of this analysis we assume will be the
maximum duration of recognition (five years). We ask for comment on this assumption. We
assume that application for renewal would take less time than the initial application for
recognition as the information will have been mostly already compiled. We assume that the
73

renewal application would be overseen by a lawyer and a natural science manager and estimate
that it would take between 20 and 40 hours. We assume renewal costs would be incurred every
five years, or twice over a 10-year period, and add the discounted present value of the renewal
costs incurred during year 5 to the discounted present value of the renewal costs incurred during
year 10 to obtain the total renewal costs. We assume discount rates of seven percent for the lower
bound estimate and three percent for the upper bound estimate. Consequently, we estimate cost
to submit applications for renewal over 10 years would range from $56,631 (17.5 ABs x 20
hours x the average of $128.52 per hour and $136.44 per hour divided by 1.07 raised to the 5th
power + 17.5 ABs x 20 hours x the average of $128.52 per hour + $136.44 per hour divided by
1.07 raised to the 10th power = $56,631) to $148,999 (17.5 ABs x 80 hours x the average of
$128.52 per hour and $136.44 per hour per hour divided by 1.03 raised to the 5th power + 17.5
ABs x 40 hours x the average of $128.52 per hour and $136.44 per hour per hour per hour
divided by 1.03 raised to the 10th power = $148,999). We estimate the annualized renewal cost
discounted at seven percent over 10 years would range from $7,535.48 to $19,826.29. The
annualized costs discounted by 3 percent over five years would range from $6,445.50 to
$16,958.49.

c. Costs to modify existing programs to accredit labs to the proposed standards
ABs would incur one-time costs to modify their existing program for accrediting labs to
the requirements of the proposed rule, if finalized. Activities for establishing a program could
include modifying
•

a strategic plan for accrediting labs to the proposed standards,

•

implementation plans for assuring that quality standards are met,
74

•

quality management system procedures (QMSPs) for defining policies,

•

standard operating procedures (SOPs) for auditing and inspecting labs against the
proposed standards, and

•

training auditors and inspectors to monitor the performance of member labs.

We assume managers and scientists in each AB would spend time to modify existing
programs for participating labs to meet the requirements of the proposed rule, if finalized. We
assume that each activity would require between 20 hours and 40 hours for a manager and
between 20 hours and 40 hours for a scientist. We apply the fully loaded wages for a manager
($128.52) and a scientist ($75.38) to these hourly burdens and multiply by the number of ABs to
obtain a total one-time cost to the industry of between about $214,095 and about $428,190 for
modifying existing programs for accrediting labs to the proposed standards. We report the onetime costs to establish a program to accredit labs to the proposed standards are reported in Table
28.
Table 28: One-time costs for participating ABs to modify existing programs to accredit labs
to the proposed standards
Manager
hourly
burden
(lower
bound)

Manager
hourly
burden
(upper
bound)

Scientist
hourly
burden
(lower
bound)

Scientist
hourly
burden
(upper
bound)

Strategic and Action
Plans

20

40

20

40

QMSPs and SOPs

20

40

20

40

Training

20

40

20

40

Total Industry Cost

Total
industry
costs
(lower
bound) 1

Total
industry
costs
(upper
bound) 1

$214,095

$428,190

1

We estimate the number of ABs using a Pert distribution with the minimum (5) as the most likely number. This
yields a mean of 17.5 ABs that would participate in the labs program. The upper and lower bounds of total one-time
industry costs can be replicated by using the 17.5 mean.

We divide the upper and lower bounds for the total industry costs by the average number
of participating ABs (17.5) to obtain the range on the one-time costs per AB to establish a
75

program of between $12,234 and $24,468. The annualized cost for all participating ABs to
modify existing programs to accredit labs discounted at seven percent over 10 years range from
$28,488 to $56,976. The annualized costs discounted by three percent over 10 years range from
$24,367 to $48,735.
d. Costs to periodically assess participating labs
There would be costs incurred by participating ABs to periodically assess participating
labs for compliance with the proposed standards. These costs would be incurred over and above
those required to accredit labs to the ISO/IEC 17025 standard, which we include in the estimated
costs incurred by participating labs to maintain accreditation to that standard. The proposed rule,
if finalized, would require a participating AB to conduct an onsite assessment of a participating
lab every two years. Certain assessment activities may be conducted remotely. We assume that
each assessment would take between 16 and 24 hours, including for preparation, travel and for
any follow-up reporting and correspondence. Consequently, we estimate monitoring and
assessing costs incurred by ABs annually to be between about $12,061 (16 hours x $75.38 per
hour x 20 participating labs x 0.5 inspections per year = $12,060.80) and about $67,842 (24
hours x $75.38 per hour x 75 participating labs x 0.5 inspections per year = $67,842.00).
e. Recordkeeping and reporting costs
The proposed rule, if finalized, would require a participating AB to maintain records of
participating lab accreditation activities for five years after the date of the creation of the record,
including any changes to the scopes of accreditation. ILAC requires that ABs maintain these
records, although ILAC does not specify the number of years. We do not have information on the
number of years that ABs keep records. For our analysis, we assume that ABs keep records at
76

least 5 years after the date of creation and that no additional recordkeeping costs would be
incurred. We request comment on this assumption.
The proposed rule, if finalized, would require a participating AB to report to us any
significant changes affecting its accreditation program or the accreditation status of participating
labs it accredits. The proposed rule, if finalized, would require participating ABs to provide us
with access to records and other resources, including self-assessments by ABs and participating
labs, records related to a participating lab’s or AB’s accreditation status, investigations of
participating labs or ABs, and information on the AB's qualifications, resources, quality
assurance programs, recordkeeping, reporting, monitoring procedures. The participating AB
would also incur costs for making records available electronically to us. The amount of time the
AB must devote to these activities will depend in part on the number of participating labs that it
has accredited.
We estimate that participating ABs would incur one hour per month, or 12 hours per year
submitting reports and notifications to us. We assume this task would be undertaken by an
employee at the level of microbiologist. Consequently, we estimate the annual cost to
participating ABs to be about $15,830 (12 hours x $75.38 per hour x 17.5 ABs = $15,829.80).
f. Costs to ensure verification studies submitted by participating labs are evaluated
properly
Under the proposed rule, the first validation or verification study for a method would go to the
participating AB, so that the AB can evaluate whether to add the method to the participating
lab’s scope of accreditation. All subsequent validation and verification studies would be
submitted to us. This requirement would not affect the total number of validation and verification
studies conducted and evaluated but would distribute to participating ABs the responsibility to
77

evaluate some studies. We assume this responsibility would lie outside the ABs’ current
purview. We assume ABs would contract with a scientist from an outside organization on an asneeded basis, and that ABs would incur some administrative costs to ensure that the studies are
evaluated properly. We assume that each study submitted to an AB would require 4 to 6 hours to
ensure proper evaluation by a microbiologist at a fully loaded hourly wage of $75.38, and that
each participating lab would submit 1 to 10 validation and verification studies per year for ABs
to evaluate. We report the parameters used to estimate the costs to ensure that validation and
verification studies are evaluated properly in Table 29.
Table 29: Parameters used to estimate the costs incurred by participating ABs to ensure
validation and verification studies are properly evaluated
Lower bound
Upper bound
Hourly burden to ensure that each validation or
4
8
verification study is properly evaluated
Fully loaded wage

$75.38

$75.38

Number of participating labs1

20

75

Number of validation and verification studies per
lab required to be properly evaluated by an ABs

1

10

$6,030.40

$452,280.00

Total cost to ensure verification studies are
evaluated properly
1

Includes the estimated number participating labs that test human and animal food offered for import covered under
the proposed rule and the estimated number of participating labs that test shell eggs, sprouts, bottled water, and other
food subject to specific testing requirements covered under the proposed rule.

g. Summary of costs incurred by ABs
We report the costs of the proposed rule that would be incurred by participating ABs by
cost category and frequency with which they would occur in Table 30. For the one-time costs of
the initial application for recognition and for modifying existing programs we discount over 10
years at seven percent and at three percent. For the costs for application renewal we assume costs
78

are incurred at year five and year 10. The present value of these costs are discounted over 10
years at seven percent and three percent.
Table 30: Summary of the costs and frequencies incurred by ABs by cost category
Task

Lower bound

Upper bound

Frequency

Costs for initial application for
recognition

$92,736

$185,472

One-time

Costs for application renewal

$56,631

$148,999

Every 5 years

$214,095

$428,190

One-time

$7,761

$67,842

Annual

$15,830

$15,830

Annual

$6,030

$452,280

Annual

Modify existing programs for
accrediting labs
Periodically assess
participating labs
Recordkeeping and reporting
costs
Costs to ensure verification
studies are evaluated properly

We use a Monte Carlo simulation to estimate total annualized costs and the present values of
costs incurred by participating ABs. We assume uniform distributions for annualized cost
estimates that range between the lower bound and upper bound described in each cost category.
We report the simulation results for the total present values and annualized costs incurred by
ABs discounted by seven percent and three percent over 10 years in Table 31.

Table 31: Present values and total annualized costs incurred by ABs discounted at 7
percent and 3 percent over 10 years
5th
95th
Mean
percentile
percentile
estimate
estimate
estimate
Annualized costs at 7 percent
$105,457
$203,257
$341,244
Annualized costs at 3 percent
$100,668
$192,420
$317,123
Present value at 7 percent
$651,707
$1,457,703
$2,648,382
Present value at 3 percent
$760,239
$1,671,666
$2,993,175
79

2. Costs incurred at the lab level
Labs currently used by the human and animal food industries may incur the costs of
accreditation to the proposed standards, if finalized. The proposed rule incorporates by reference,
subject to certain exceptions, the management requirements and technical requirements in the
ISO/IEC 17025 standard. Consequently, labs would have to become accredited to the ISO/IEC
17025 standard to participate in the labs program. There would be costs over and above those
required to maintain accreditation to the ISO/IEC 17025 standard to participate in the labs
program, such as costs:
•

To be periodically assessed against the proposed standards by the AB,

•

To meet requirements to participate in a proficiency testing program,

•

When necessary, to validate an analytical method

Labs would also incur costs at the analysis level. These include costs related
To the sampling process, verifying analytical methods and compiling and submitting analytical
reports to us. The costs of the proposed requirements for the oversight of sampling include:
•

obtaining a sample collection plan and sample collection report

•

one-time costs to obtain sampler’s applicable qualifications by training and experience.

To estimate the costs incurred at the lab level we use the fully loaded wage of $69.22 for a
Food Scientist and Technologist, code 11-9121, obtained from the Occupation Employment and
Wages, May 2017 report.
a. Costs to attain and maintain accreditation to the ISO/IEC 17025
The Association of Public Health Laboratories (APHL) reported the results of a survey
administered to 30 accredited labs associated with FDA cooperative agreements (FDA’s ISO
cooperative agreement, the FDA Animal Food Regulatory Program Standards cooperative
80

agreement, and accredited labs that receive assistance through the FDA Associations
Cooperative Agreement) regarding the costs to attain and maintain accreditation to the ISO/IEC
17025 standard (Ref. 16). Representatives from eighteen labs responded to the survey, for a
response rate of 60 percent. A limitation of the survey was that the information obtained
depended on the respondents’ ability to recall the costs, which may have been incurred several
years prior to responding. The respondents did not specify the number of scopes to which their
cost estimates would apply. We assume the range in scopes implied from the survey responses
corresponds to the same range in scopes that would be accredited due to the proposed rule.
According to the survey, the average one-time costs to attain and maintain accreditation
to ISO/IEC 17025 range from $100 to $700,676, with a median response of $75,642. These
include costs for training and consultants, supplies and equipment, and software and monitoring
systems. We assume these are one-time costs. The annual costs to maintain accreditation range
from $2,541 to $811,315, with median response of $246,292. These include assessment fees,
calibration costs, preventive maintenance, proficiency testing costs and annual salaries for
additional employees that were needed to perform analytical, quality control and administrative
responsibilities which we assume would be incurred annually. We report the ranges in one-time
costs and annual costs for a participating lab to attain and maintain accreditation to the ISO/IEC
17025 standard in Table 32.
Table 32: One-time and annual costs to attain and maintain accreditation to the ISO/IEC
17025 standard per lab1
Lower
Upper
Median
bound
bound
One-time costs to attain and maintain
$100
$75,642
$700,676
accreditation to ISO/IEC 17025
Annual costs to attain and maintain accreditation
$2,541
$246,292
$811,315
to ISO/IEC 17025
1

Association of Public Health Laboratories, “Laboratory Costs of ISO/IEC 17025 Accreditation: A 2017 Survey
Report.” February 2018.

81

We apply the costs reported in Table 32 to all participating labs that are currently not accredited
to ISO/IEC 17025. We estimate that all participating labs that would test human or animal food
offered for import covered under the proposed rule are currently accredited to ISO/IEC 17025
and would not incur additional costs from this requirement. To estimate the costs that would be
incurred by participating labs not currently accredited to ISO/IEC 17025 that test shell-eggs,
sprouts and bottled water and other food subject to specific testing requirements under the
proposed rule, we multiply the number of these labs reported in Table 5 by the one-time and
annual costs per lab reported in Table 32. We report the total one-time costs and annual costs for
all participating labs not currently accredited to ISO/IEC 17025 that would test shell-eggs,
sprouts and bottled water subject to testing requirements in Table 33.

Table 33: Total one-time and annual costs for ISO/IEC 17025 accreditation for
participating labs that would test shell-eggs, sprouts and bottled water and other food
subject to covered testing
Lower bound

Upper bound

Number of participating labs currently not accredited to
ISO/IEC 17025

2

8

Total one-time costs for accreditation to ISO/IEC 17025

$200

$5,605,408

$5,082

$6,490,520

Total annual costs for accreditation to ISO/IEC 17025

b. Costs for participating labs to be assessed by us and ABs
The proposed rule, if finalized, would allow us to assess participating labs to determine
whether they are complying with the proposed requirements. We may review any records
pertaining to the labs program and may conduct an on-site assessment at any time, with or
82

without the presence of a representative from the participating AB that accredited the
participating lab. Moreover, the proposed rule, if finalized, would require participating ABs to
conduct an on-site assessment of participating labs every two years to maintain accreditation
status of participating labs. We estimate that we would conduct an on-site assessment once every
four years. We assume that these costs would be over and above those incurred for maintaining
accreditation to the ISO/IEC 17025 standard.
We estimate that a participating lab would spend an additional 4 to 8 hours once every
two years preparing for and following up with these assessment activities. Assuming a fully
loaded wage for a Food Scientist and Technologist of $69.22, we estimate the annual costs to be
assessed by ABs and FDA range between about $4,153 and about $31,149. We report the annual
costs for participating labs to be assessed by us and ABs in Table 34. We ask for comment on the
additional costs for incurred by participating labs to be assessed from the proposed rule.
Table 34: Costs for participating labs to be assessed by us and ABs
Lower bound
Upper bound
$4,153.20
$31,149.00
c. Costs to participate in a proficiency testing program
The requirements in the proposed rule follow the Association of Analytical Chemists
(AOAC) guidelines for proficiency testing which requires proficiency testing at least once a year
for each method within each scope of accreditation. This exceeds the requirements for
proficiency testing in the current ISO/IEC 17025 standard. The current ISO standard allows
flexibility for labs to participate in either inter-laboratory comparisons or proficiency testing
programs at unspecified frequencies. We assume that the largest labs adhere to AOAC guidelines
while the smallest labs may not adhere to the guidelines. We ask for comments on this
assumption.
83

We use the ISO/IEC 17025 standard as the baseline for the smallest labs. We assume
participation in an inter-laboratory comparison program costs about half the cost to participate in
a proficiency testing program. We also assume that half of the smallest labs would participate in
inter-laboratory comparisons for each accredited method and the other half would participate in a
proficiency testing program for each accredited method.
We use the results on the per lab-costs for proficiency testing found from the APHL
survey (Ref.16) to estimate the additional cost to industry of the requirement to participate
annually in a proficiency testing program. The APHL survey found that proficiency testing cost
between $0 and $9,000, with a median per-lab cost of $3,327. We use our estimate of between
20 and 75 participating labs reported from information contained in Table 3 and apply the costs
for proficiency testing to 50 percent of the number of participating labs and multiply again by 50
percent to account for the lower cost of inter-laboratory comparisons. We estimate the total
annual costs to comply with the proposed proficiency testing program range between $0 and
$168,750, with a medium estimate of $27,586.

d. Costs to validate testing methodology
The proposed rule would require participating labs to use validated methodologies.
Because the ISO/IEC 17025 standard requires that non-standard methods be validated, we
assume that our estimates of the recurring costs to maintain accreditation to the ISO/IEC 17025
standard include these costs. We ask for comment on this assumption. Moreover, any additional
costs that may be incurred to verify methods that have not been validated for specific foods are
discussed in a following section on costs incurred by test.

84

e. One-time costs to compile 10 consecutive successful full analytical reports per lab prior
to qualifying for abridged reporting
Each participating lab would be required to provide 10 consecutive full analytical reports
prior to qualifying for abridged analytical reporting. For purposes of this analysis, we assume
that each participating lab would be accredited by a participating AB to two disciplines within
the scope of its accreditation. We multiply the cost to review a full analytical report by 10
consecutive successes (assuming the two disciplines are included in the 10 consecutive
successes), and finally by the number of participating labs (between four and 25 participating
labs that test human and animal food offered for import covered under the proposed rule, with a
mean of 12; plus between 16 and 50 participating labs that test shell eggs, sprouts, bottled water
and for other covered testing, with a mean of 21). We use Monte Carlo simulation methods to
obtain the 5 percent, mean and 95 percent estimates of the one-time cost to industry from this
requirement and report them in Table 35.
Table 35: One-time costs for industry to compile 10 full analytical reports per lab prior to
qualifying for abridged reporting
5th percentile estimate
Mean estimate
95th percentile
$50,216.93
$80,899.35
$121,535

a. Total costs incurred at the participating lab level
We report the upper and lower bounds for the annualized costs incurred at the lab level
by cost category discounted at seven percent and three percent over 10 years in Tables 36a and
36b.

Table 36a: Annualized costs incurred at the participating lab level by cost category
discounted at 7 percent over 10 years
Lower bound
85

Upper bound

Costs for labs to attain and maintain accreditation to ISO/IEC
17025 for a testing scope

$5,109

$7,236,393

Costs for labs to be assessed by FDA and AB

$4,153

$31,149

Costs for labs to participate in a proficiency testing program

$0

$168,750

Costs for labs to submit 10 successful full analytical reports
each prior to abridged reporting

$6,652

$18,973

Table 36b: Annualized costs incurred at the participating lab level by cost category
discounted at 3 percent over 10 years
Lower bound

Upper bound

Costs for labs to attain and maintain accreditation to ISO/IEC
17025 for a testing scope

$5,105

$7,128,505

Costs for labs to be assessed by FDA and AB

$4,153

$31,149

Costs for labs to participate in a proficiency testing program

$0

$168,750

Costs for labs to submit 10 successful full analytical reports
each prior to abridged reporting

$5,477

$15,622

We also used a Monte Carlo simulation to simulate total annualized costs and the present
values of costs incurred at the participating lab level. We assume Pert distributions for the
annualized costs to attain and maintain accreditation to ISO/IEC 17025 and to participate in a
proficiency testing program with the median values found in the AHPL survey as the most likely
values. We assume a uniform distribution for the costs to be assessed by us and ABs and the
costs to submit 10 successful full analytical reports between the reported lower and upper
bounds. We report the 5 percent, means and 95 percent estimates of the total costs annualized
over 10 years at seven percent and three percent and present values of costs discounted at seven
percent and three percent over 10 years in Table 37.

Table 37: Annualized costs and present values of costs incurred industry-wide at the lab
level, discounted by 7 percent and 3 percent over 10 years
86

5th percentile
estimate

Mean estimate

95th percentile
estimate

Annualized costs at 7 percent

$461,085

$2,148,893

$4,448,946

Annualized costs at 3 percent

$482,816

$2,150,116

$4,412,324

Present value at 7 percent

$3,091,077

$26,082,378

$49,130,735

Present value at 3 percent

$3,674,121

$31,058,702

$58,510,396

3. Costs incurred for each test
There would be costs incurred by test. These include costs to comply with standards
related to sampling, including notices of sampling in limited circumstances, test results, verifying
analytic methods, and the costs of compiling and submitting an analytical report which are
incurred each time a test is performed. In addition, costs may be incurred for switching from a
conveniently located lab to an appropriately accredited participating lab for each test performed.
Costs to comply with the standards related to sampling include the costs to obtain relevant
documentation of samplers’ training and experience. Moreover, participating labs would also
incur the cost to ensure that methods required for each test fall within their scope of
accreditation, and a sample collection plan and a sample collection report.
We use the mean hourly wage for Food Scientists and Technologists, Occupation Code
19-1012, Occupational Employment and Wages May 2017, and multiply by 2 to account for
overhead to obtain a fully loaded wage of $69.22 for estimates of the labor costs incurred at the
analysis level. From information reported in the baseline conditions section there would be
between 10,708 and 15,110 analytical reports submitted for tests of human or animal food
offered for import covered under the proposed rule, and between 1,309 and 7,030 analytical
reports of tests of shell-eggs subject to specific testing requirements, and between 25 and 30
87

analytical reports of tests of bottled water, sprouts and other tests subject to testing covered under
the proposed rule.
a. Costs of the notice of sampling
The proposed rule provides that in certain circumstances we may require the participating
lab to submit a notice of sampling to the appropriate FDA Division, modified as appropriate, 48
hours prior to when the sampling would occur. This would allow us the option to observe the
sampling process. The notice of sampling would require a unique identifier of the sample, the
name and address of the sampler, the name of the corresponding participating lab that would test
the sample, a primary contact from the sampler, the reason the food is to be sampled, the location
where the sample would be collected, applicable entry line numbers and product codes, and the
date and approximate time the sampling would begin.
We assume that it would take a lab analyst between 1 and 2 hours to compile the required
information and submit the notice of sampling to us. The intent of this requirement is to allow us
the option to observe the sample collection process on an occasional and random basis. We
assume that between 1 percent and 5 percent of all analyses submitted annually would be subject
to the notice of sampling requirement. We use a fully loaded wage of a Food Scientist and
Technologist ($69.22) to find the cost of the notice of sampling requirement to range between
about $8,335 (1-hour x $69.22 hourly wage x 1 percent x 12,041 samples = $8,334.84) and about
$153,460 (2 hours x $69.22 hourly wage x 5 percent x 22,170 samples = $153,460.25).
b. Costs to generate a sample collection plan and to compile a sample collection report
The proposed rule would require each participating lab to submit to us appropriate
documentation of the sampler’s credentials, a sample collection plan and sample collection

88

report to ensure the representational nature of the sampling does not impact the validity of the
subsequent testing. A sample collection report must include
•

a product code,

•

dates of sampling,

•

size,

•

identity,

•

quantity of samples,

•

sampling procedures and sampling techniques,

•

and documentation of the chain of custody of the sample.

Participating labs would be required to submit sample collection plans and sample
collection reports with analytical reports of tests covered by the proposed rule. We do not know
the number of sampling plans and collection reports affected by the proposed rule or the extent to
which current sampling plans for tests of food offered for import covered under the proposed
rule already conform to the requirements in the proposed rule. We assume that all samples
collected for tests covered by the proposed rule would have some sample collection reports and
that some may be deficient in their sample collection plans and reports. In the earlier section
describing cost-savings from the proposed rule we assume that assume that 10 percent of
analytical reports submitted for tests of human or animal food offered for import covered under
the proposed rule may currently be deficient in requirements to satisfy the non-technical review
and may result in some cost-savings from the clarifications of the proposed rule. Because we do
not interact with entities that collect samples of shell-eggs, bottled water or sprouts at the time of
the collection, we assume that all sample collection plans and sample collection reports that
would be submitted with analytical reports for tests of shell-eggs, sprouts, or bottled water
89

subject to specific testing requirements do not currently conform to the same format and
information required by the proposed rule and would all be deficient. We ask for comment on
this assumption.
We assume that an additional 1/2 hour to 1 hour would be spent to generate the additional
information required in a sample collection plan, and 1/2 hour and 1 hour to compile the
additional information required for a sample collection report. We multiply by the fully loaded
wage of $69.22 to obtain the lower and upper bound cost estimates of between $34.61 and
$69.22 to generate the additional information required for a sample collection plan, and the same
additional amount to compile a sample collection report. We multiply by the number of
analytical reports of shell-eggs, sprouts, and bottled water subject to specific testing requirements
to obtain the total range of sample collection reports and sample collection plans affected by
these requirements. As shown in Table 38a, industry would incur costs that range from about
$46,156 to $488,688 to generate a sample collection plan. As shown in Table 38b, industry
would incur costs that range from $46,156 to $488,688 to compile a sample collection report. We
request comments on the costs to generate a sample collection plan and to compile a sample
collection report.
Table 38a: Costs to generate a sample collection plan
Fully loaded
Hours to
wage
generate a plan

Cost per sample
collection plan

Cost for industry

Lower bound

$69.22

0.5

$34.61

$46,155.58

Upper bound

$69.22

1.0

$69.22

$488,688.31

Table 38b: Costs to compile a sample collection report
Fully loaded
Hours to
Cost per sample
wage
compile a report collection report
90

Cost for industry

Lower bound

$69.22

0.5

$34.61

$46,155.58

Upper bound

$69.22

1.0

$69.22

$488,688.31

c. Costs for participating labs to collect sampler credentials, sample collection plans
and reports and to confirm accreditation status for methods of testing that they
conduct
The proposed rule would not require sampling entities to follow standards but would
require participating labs to obtain or develop records related to sampling. Specifically, the
proposed rule would require a participating lab to obtain a sample collection plan, a sample
collection report and appropriate sampler credentials for inclusion in the analytical report
submitted to us. Moreover, the participating lab would have to confirm that the methods to be
used and analysis to be performed fall within its scope of accreditation.
We assume a participating lab would take between 10 minutes (0.17 hours) and 20
minutes (0.34 hours) to collect the sampling plan and the sampler’s credentials for inclusion in
the analytical report, and to confirm a match between the scope to which they are accredited and
the test they would perform. Using the fully loaded wage of $69.22, we estimate that
participating labs would spend between $11.54 and $23.07 per sample collection report. We
multiply the cost per sample collection report by the total annual number of reports to obtain a
total cost of these requirements. We estimate the participating labs would incur costs that range
from about $138,914 to about $511,534. We report the costs to review collection plans and
reports and to confirm the lab is accredited to the appropriate scope in Table 39.

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Table 39: Costs for participating labs to collect sampler credentials, sample collection plans
and reports and to confirm a match between the test and the scope of accreditation
Number of
Fully loaded
Cost per
sample
Total costs
Hours
wage
report
collection
reports
Lower bound

$69.22

0.17

$11.54

23.568

$138,914.05

Upper bound

$69.22

0.33

$23.07

26,060

$511,534.17

d. Costs to report results from validation and verification studies
The proposed rule, if finalized, would require the participating lab to submit verification
and validation studies to us as part of an analytical report, or to an AB as a prerequisite for
participation in the labs program. Additional studies may include information to verify that a
method previously validated for a specific food item is also valid for a different food item, in
what is called a ‘matrix extension.’ Internal experts suggest that between 5 percent and 30
percent of analytical reports currently submitted for tests of human and animal food offered for
import covered under the proposed rule require verification studies such as matrix extensions,
and that it requires less time to perform a matrix extension than to validate a method. We
estimate the burden for a matrix extension is 75 percent of the burden to validate a method.
The ISO/IEC 17025 standard requires the use of validated methods for testing foods. We
included this burden in the estimated costs of maintaining accreditation. However, the proposed
rule, if finalized, would require additional verification studies over and above the requirements in
ISO/IEC 17025 such as matrix extensions. We estimate the cost of requiring participating labs to
submit these additional verification studies to be between 1 percent and 5 percent of the costs for
verification and validation activities required to maintain accreditation to ISO/IEC 17025. We
ask for comment on this assumption.
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Because there is only one food item and contaminant combination that would be subject
to the specific testing requirements for shell-eggs, sprouts and bottled water, we assume these
tests would not require matrix extensions. While we acknowledge that verification studies might
also be extended to include new contaminants, we assume that methods used to test shell-eggs,
sprouts and bottle water would have been validated, and the costs to do so would have been
included in the costs to maintain accreditation to the ISO/IEC 17025 standard. Consequently, we
assume that shell-eggs, sprouts and bottled water producers would incur no additional costs from
this requirement.
We estimate the costs to perform a matrix extension from responses to an internal survey
of representatives from 13 state labs with which we have cooperative agreements regarding the
burden incurred to verify an analytical method. The average low response was 27.3 hours and the
average high response was 59.1 hours. We multiply by 0.75 to obtain the lower burden for
conducting a matrix extension of between about 22 (27.3 hours x 0.75 for a matrix extension =
about 22 hours) and about 46 hours (59.1 hours x 0.75 = about 46 hours). We use the fully
loaded wage for a food scientist and technologist of $69.22 to obtain the cost of a matrix
extension of between about $1,521 ($69.22 per hour x 22 hours = $1,521.11) and about $3,167
($69.22 per hour x 46 hours = $3,166.82).
Finally, to estimate the number of analytical reports that would require matrix extensions,
we multiply by the share of analytical reports submitted to us for tests of human or animal food
offered for import covered under the proposed rule that would require matrix extensions
(between 5 percent and 30 percent based on our experts), by the total number of analytical
reports for tests of human and animal food offered for import covered under the proposed rule
(between 10,708 and 15,110 analytical reports). To obtain the cost of the matrix extensions, we
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multiply the number of affected analytical reports by our estimated cost to verify each matrix
extension. The total cost to industry to verify analytical methods would apply to specific food
items ranges from about $8,144 to about $1,053,121. We report the additional costs from the
proposed rule for labs to verify analytical methods in Table 40.
Table 40: Cost to report results from validation and verification studies for matrix
extensions

Lower
bound
Upper
bound

Fully
loaded
wage

Hours for
lab to
verify an
analytical
method

Cost per
sample to
verify an
analytical
method

Percent
analytical
reports
requiring
verification

Percent of costs
over and above
ISO/IEC 17025

Total costs

$69.22

22

$1,521.11

5%

1%

$8,143.64

$69.22

46

$3,166.82

30%

5%

$1,053,120.97

a. Costs to compile an analytical report with test results
The proposed rule, if finalized, would require each participating lab to submit to us a full
analytical report with test results, unless they can submit abridged reports. As described in the
cost-savings section, we propose to reduce the quantity of information required in an analytical
report once participating labs have submitted 10 consecutive successful full analytical reports.
Participating labs that submit these 10 consecutive successful full analytical reports would then
be allowed to submit abridged analytical reports for the disciplines included in the 10
consecutive analytical reports thereafter.
Each submission would contain:


Test results



Sampling plans, sample collection reports, and the sampler’s qualifications



When a validation study required, the documentation required by 17025



When a verification study required, documentation such as results and supporting
analytical data
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

Either a full or abridged analytical report (see below)



Certification that the test results and reports are true and accurate, and that they include
the results of all tests conducted under this program on the product at issue.

In the cost-savings section we estimated the cost to compile an abridged analytical report to be
between 25 percent and 33 percent of the costs to compile a full analytical report.
Participating labs allowed to submit to abridged analytical reports would still be required
to maintain records of all information required in a full analytical report. We anticipate
reviewing the records of information required in a full analytical report of participating labs
allowed to submit abridged analytical reports one to three times per year per participating lab.
Analytical reports are currently submitted for tests of human and animal food offered for
import covered under the proposed rule and, as discussed in the cost-savings section, would
accrue cost-savings from clarifications of the reporting requirements, and those who qualify for
abridged reporting (and incur the costs of compiling 10 successful full analytical reports), would
accrue additional cost-savings. Because we currently do not receive analytical reports for tests of
shell-eggs, sprouts and bottled water subject to specific testing requirements, we assume they are
currently not generated with the same information as would be required by the proposed rule. We
assume that all tests of shell-eggs, sprouts and bottled water subject to specific testing
requirements would result in costs from compiling analytical reports from the proposed rule –
first, 10 consecutive successful full analytical reports per participating lab, then abridged
analytical reporting thereafter. We ask for comment on these assumptions.
We estimated the costs for participating labs to qualify for abridged reporting in the
section on lab level costs. As reported in Table 12 in the cost-savings section, we estimate the
cost to compile an abridged analytical report of between $46.23 and $122.04, and multiply by the
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annual number of tests of shell eggs, sprouts and bottled water subject to specific testing
requirements (between 1,309 and 7,030) and obtain the lower and upper bounds for compiling
abridged analytical reports. We report the costs to compile abridged analytical reports in Table
41.
Table 41: Costs to compile and submit abridged analytical reports
Numbers of tests of shellCost to compile an
Total cost to compile abridged
eggs, sprouts, bottled
abridged analytical report
analytical reports
water, and other tests
Lower
$46.23
1,309
$61,649.50
bound
Upper
$122.04
7,030
$861,611.02
bound

e. Costs for switching to participating labs accredited to the appropriate scope
The proposed rule may result in switching costs if owners and consignees must switch
from their current conveniently located lab to a participating lab that is accredited to the
appropriate scope that may not be as conveniently located. We assume there may be switching
costs for a fraction of samples to be tested that would equal the increment to costs to ship these
samples for analysis to participating labs accredited to the appropriate scope located at a greater
distance than the current lab. We assume that switching costs would be net of the costs of any
current transfers between labs. We also assume for tests that would be subject to switching costs
the current location of the lab is the primary factor for determining which to choose.
Without additional information, we assume the shipping cost to a participating lab
accredited to the appropriate scope is between 0 and 25 percent more than the shipping cost to
the current lab, net of any current costs of inter lab transfers. We estimate the ranges for the
increased shipping costs using internal documents regarding the numbers and weights of sub96

samples recommended to be collected for each food category and the shipping costs published on
UPS website (Ref. 17). A sample may be comprised of several sub-samples, with each subsample weighing between 2 and 3 pounds. FDA’s internal Compliance Program Guidance
Manual recommends collecting 10 sub-samples per sample of imported food in the absence of
specific sample collection instructions when testing food with no identified pathogen (Ref. 18).
We use 10 sub-samples as the lower bound in the range of sub-samples that would be shipped to
a participating lab.
When testing for pathogens such as Salmonella and other specified microbes that might
be consumed by vulnerable populations (infants, elderly, immune-compromised, etc.), The
Bacteriological Analytical Manual (BAM), Chapter 1, calls for 60 sub-samples per sample for
foods that would not normally be subjected to a process lethal to the microbe of interest
(Category I foods) (Ref. 19). We use 60 sub-samples as the upper bound in the range of subsamples that would be shipped to a participating lab. Because our internal experts judge that 10
sub-samples represents the most-likely number to comprise a full sample, we assume a Pert
distribution, with 10 as the most likely value for the number of sub-samples in a full sample.
We use the weight of 2.5 pounds per sub-sample obtained from internal guidance, the
weight of the packaging materials distributed uniformly between 1 and 10 pounds, and shipping
costs based on retail rates published by UPS, distributed uniformly between $2.30 per pound and
$7.67 per pound (Ref. 17). We assume that switching costs would be incurred for the number of
samples currently not analyzed by labs accredited to the ISO/IEC 17025. Consequently, we
estimate that between 0 percent and about 5.2 percent of all analytical reports submitted for tests
of human and animal food offered for import covered under the proposed rule (100 percent – 100

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percent of reports analyzed by an accredited lab = 0 percent; and 100 percent – 94.8 percent =
5.2 percent).
We do not have information on the accreditation status of labs that perform tests for
shell-eggs, bottled water and sprouts subject to specific testing requirements that would be
covered by the proposed rule, if finalized. Nor do we have information on the accreditation
status of labs that perform tests used for corrective action plans after an order suspending
registration, evidence for a hearings prior to a mandatory recall order, evidence for an appeal of
an administrative detention order, or under a food testing order. We assume the accreditation
status of these tests is the weighted average of the accreditation status of participating labs
discussed earlier in the Baseline Conditions section and that between 10 percent and 72 percent
of all analytical reports submitted to support shell-egg, sprouts and bottled water testing
requirements (100 percent – 90 percent of labs currently accredited to ISO/IEC 17025 = 10
percent; and 100 percent – 28 percent labs currently accredited to ISO/IEC 17025 = 72 percent)
would be subject to switching costs. Adding together the analytical reports submitted for tests of
human and animal food offered for import covered under the proposed rule with those submitted
for tests of shell-eggs, sprouts and bottled water and other tests covered under the proposed rule
we obtain a total number of analytical reports subject to switching costs uniformly distributed
between 133 and 5,869. We report the switching costs from the proposed rule in Table 42.
Table 42: Incremental costs to switch to participating labs accredited to the appropriate
scope
Upper bound
Lower bound
Number of sub-samples collected
Incremental shipping costs1
Total number of samples subject to switching costs
Total switching costs2
1

10
$8.66
133
$14,955.25

60
$487.26
5,869
$1,627,305.84

Costs range from $2.30 per pound to $7.67 per pound. We assume each sample weighs 2.5 pounds and packing
materials weigh from 1 pound to 10 pounds.

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2

We assume switching costs range 0 and 25 percent from current baseline costs.

f. Summary of costs incurred by test
We report summary of the costs incurred by test by sub- category and their annual
frequencies in Table 43.
Table 43: Summary of costs incurred by test and their annual frequencies
Lower bound Upper bound
Frequency
Costs of the notice
$8,335
$153,460
Annual
of sampling
Costs to generate a
sample collection
$46,156
$488,688
Annual
plan
Costs to compile a
sample collection
$46,156
$488,688
Annual
report
Costs for labs to
confirm
$138,914
$511,534
Annual
accreditation to the
appropriate scope
Costs to include
results from
$8,144
$1,053,121
Annual
validation and
verification studies
Costs to compile an
analytical report
$61,649
$861,611
Annual
with test results
Costs for switching
to a lab accredited to
$14,955
$1,627,306
Annual
the appropriate
scope

We use Monte Carlo methods to simulate total annualized costs and the present values
incurred by test. In Table 44 we report the simulated 5th percentile, mean and 95th percentile
estimates of the annual and present value of costs by test discounted at seven percent and three
percent over 10 years.
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Table 44: Total annual costs and present value of costs incurred by test discounted over 10
years at seven percent and three percent
5th percentile
95th percentile
Mean estimate
estimate
estimate
Annual costs
$1,394,555
$2,296,107
$3,569,163
Annualized costs at 3 percent
$1,371,870
$2,296,107
$3,541,175
Present value of costs at 7 percent
$9,625,868
$16,126,894
$25,775,326
Present value of costs at 3 percent
$11,690,703
$19,586,257
$31,304,365
4. Cost of fewer false negative test findings
The cost of fewer false negative test findings from better tests would include the cost of
salvaging any shipments of human or animal food offered for import subject to the proposed rule
that would now test positive. We assume consumers would not pay for human or animal food if
they knew it to be contaminated, and that the consumer surplus gained by knowing the food is
contaminated is at least as high as the lost wholesale value of the contaminated human or animal
food incurred by the supplier. We consider this private transfer from supplier to consumer
separately from the public health benefit of reducing foodborne illness.
There might be some portion of shipments of human or animal food offered for import
covered under the proposed rule that currently test negative but would test positive under the
proposed rule that could be salvaged by reconditioning. We estimate a cost for reconditioning of
between $500 and $1,500 per line for 20 percent of shipments of human and animal food offered
for import covered under the proposed rule from fewer false negative test findings. We assume
that shipments of shell-eggs, bottled water, sprouts and other food subject to specific testing
requirements would either be discarded or diverted to another use if a sample were to test
positive. We assume zero costs for discarding contaminated shell-eggs, bottled water, and
sprouts subject to specific testing requirements, and that any diversion of these products to a

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lower value use is a reduction in the private transfer from producer to the consumer discussed
above.
We use Monte Carlo methods to estimate that 20 percent of between -419 and 420
shipments, with a mean of 13 shipments of human and animal food offered for import covered
under the proposed rule would incur a reconditioning cost of between $500 and $1,500 per
shipment. We report the 5 percent, mean and 95 percent estimates for the cost of false negatives
and the present value of the cost discounted at seven percent and three percent over 10 years in
Table 45.
Table 45: Annual and present value of costs to recondition human and animal food offered
for import covered under the proposed rule with fewer false negatives, discounted at seven
percent three percent over 10 years
5th Percentile
95th Percentile
Mean estimate
Estimate
estimate
Annualized cost at 7 percent
-$84,668
$2,561
$89,535
Annualized cost at 3 percent
-$84,668
$2,561
$89,535
Present value of costs at 7 percent
-$594,675
$17,985
$628,857
Present value of costs at 3 percent
-$722,238
$21,843
$763,753
5. One-time costs to learn the rule
We model the one-time learning costs as the time required by regulatory affairs personnel
from human and animal food importers, laboratory accreditation bodies, private and public
laboratories, shell egg producers, bottled water producers, sprouts producers and other entities to
access and read the rule, if finalized. We estimate that a regulatory affairs expert would incur a
burden of between 15 minutes and 30 minutes to access the rule and would read the preamble
and codified provisions at a rate of 200 to 250 words per minute. The preamble has
approximately 50,000 words and the codified has approximately 15,500 words, and we estimate
that it would take between 4.36 and 5.45 hours for a regulatory affairs expert to read the
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preamble and codified.
We estimate the mean hourly wage of a regulatory affairs expert using wages reported in
the Bureau of Labor Statistics, Occupation Employment Statistics, May 2017 National IndustrySpecific Occupational Employment Estimates for a Lawyer, which are doubled to account for
overhead ($136.44). Applying the fully loaded mean hourly wage to the hourly burdens
described above, we obtain a one-time cost of between $597.15 and $743.71 for a regulatory
affairs expert to access and read the final rule (between 0.25 hours and 0.5 hours to access the
rule + between 4.36 and 5.45 hours to read the rule x $136.44 per hour). The total access and
learning costs for all affected entities, including importers, ABs, labs, and shell egg, sprouts and
bottled water producers, would equal between $5,693,648 (for 9,557 entities) and $9,029,912
(for 12,125 entities) if incurred the first year following publication of the rule. However, we
assume that entities would incur one-time access and learning costs uniformly over 5 years
following publication of the rule. The present value of learning costs distributed uniformly over
5 years at a discount rate of 7 percent is between $4,470,161 and $7,089,508, with annualized
costs between $594,813 and $943,352. When access and learning costs are assumed distributed
uniformly over 5 years at a discount rate of 3 percent, the present value is between $5,087,381
and $8,068,395, with annualized costs between $676,943 and $1,073,606. We request comment
about our assumption that these costs would occur over 5 years.

6. FDA Costs
FDA currently does not have a process to officially recognize ABs for the accreditation
of labs. Costs to FDA from the proposed rule would include the one-time costs to establish a
process and program to recognize ABs that include the one-time costs for training and
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investments in information technology. We would also incur recurring costs to evaluate initial
applications for AB recognition, the renewal of recognition, and the costs to monitor recognized
participating ABs and labs. In addition, there would be costs to maintain websites with current
contact information and recognition status of recognized ABs, and the scopes of accreditation,
contact information and accreditation status of participating labs. We would incur costs to review
and maintain records of analytic reports submitted for tests subject to testing requirements and to
review notifications of intents to analyze. For estimating the costs reported in this section we use
the fully loaded hourly wage of $116.75, which is derived from the 2018 annual fully loaded
salary for ORA personnel of $242,838 used by FDA for budgeting purposes.
a. Costs for management systems upgrades, maintenance and training
Implementation of the proposed rule would require expansion and modification of FDA’s
existing management systems to enable the processing of AB applications for initial recognition
and periodic renewal, the maintenance of databases of recognized ABs and participating labs,
and for processing analytical reports submitted by participating labs. FDA experts estimate the
one-time costs for improving the management systems for the labs program, including
information technology improvements, hardware, software, training and associated labor costs to
be about $3.0 million; and the annual maintenance costs of the improved management systems to
be about $0.5 million. The annualized costs to establish and maintain the improved management
systems to support the proposed rule discounted at seven percent over 10 years equal $899,189.
With a three percent discount rate over 10 years, the establishment and maintenance costs equal
$841,448.

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b. Costs to evaluate the initial applications for recognition
The proposed rule requires us to review any completed application for recognition by an
AB to determine whether the applicant meets all requirements specified in the rule. Applications
would be submitted electronically and will initially go through an automated screening. They
would then be reviewed and evaluated, and the applicants will be notified whether the
application has been approved or denied. Approvals may be accompanied by requests for further
information and denials will state the basis for the decision and provide instructions for
requesting reconsideration.
The total estimated costs to review the initial application include the costs to review of
the outcome of the automated screening, any follow-up requests for information and informing
the applicant of the outcome. We estimate the initial review of an AB’s application for
recognition would take between 40 and 80 hours. The cost for reviewing an application from an
AB would range from about $4,670 ($116.75 per hour x 40 hours = $4,669.96) to about $9,340
($116.75 per hour x 80 hours = $9,339.92). Based on our simulation, we estimate a mean of 17.5
ABs would apply to be recognized and that the total one-time cost of reviewing applications
would range from about $81,724 ($4,669.96 per AB x 17.5 ABs = $181,724.33) to about
$163,449 ($9,339.92 per AB x 17.5 ABs = $163,448.65). We estimate the annualized costs to
review an initial application would range from $10,874.49 to $21,748.98 when discounted by
seven percent over 10 years, and between $9,301.54 and $18,603.08 when discounted by three
percent over 10 years.
c. Costs to evaluate applications for renewal
The proposed rule provides that FDA may grant recognition to an AB for up to five
years, and upon application for renewal. Evaluations of applications for renewal can include
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reviews of one or more of the following: (1) AB’s self-assessments; (2) reviews, accreditations,
audits and investigations of labs; and (3) documents or other relevant information concerning the
ABs authority, qualifications, resources, quality assurance program, and recordkeeping,
reporting, notification and monitoring procedures. We estimate the burden for our evaluation of
an application for renewal would be equal to that for an initial review, or between 40 hours and
80 hours per application for renewal.
We assume renewal costs would be incurred every five years, or twice over a 10-year
period, and add the discounted present value of the renewal costs incurred during year 5 to the
discounted present value of the renewal costs incurred during year 10 to obtain the total renewal
costs. We assume discount rates of seven percent for the lower bound estimate and three percent
for the upper bound estimate. Consequently, we estimate cost to review renewals over 10 years
would range from about $99,813 (17.5 ABs x 40 hours x $116.75 per hour divided by 1.07 raised
to the 5th power + 17.5 ABs x 40 hours x $116.75 per hour divided by 1.07 raised to the 10th
power = $99,812.82) to about $262,613 (17.5 ABs x 80 hours x $116.75 per hour divided by
1.03 raised to the 5th power + 17.5 ABs x 40 hours x $116.75 per hour divided by 1.03 raised to
the 10th power = $262,613.39). We estimate the annualized renewal cost discounted at seven
percent over 10 years would range from $14,211.10to $37,390.24. The annualized costs
discounted by 3 percent over five years would range from $11,701.11 to $30,786.30.
d. Costs to maintain website registry with information on ABs and labs
The proposed rule, if finalized, would require us to provide information on our website
on all ABs, including those that have been placed on probation or whose recognition has been
revoked, or whose application for recognition has been denied. In addition, the proposed rule
105

would require us to provide information on participating labs including scopes of accreditation,
contact information and their program participation status, including those that have been placed
on probation or had their accreditation revoked. We anticipate an annual burden for maintaining
a website with information on ABs to be one hour per AB, and for maintaining a website with
information on participating labs to be one hour per participating lab. Consequently, based on
our simulation, we estimate the annual costs to maintain website information on ABs to be about
$2,043 (1-hour x $116.75 per hour x 17.5 ABs = $2,043.11), and the annual costs to maintain
website information on participating labs to range between about $2,335 (1-hour x $116.75 per
hour x 20 labs = $2,334.98) and $8,756 (1 hour x 75 labs = $8,756.18).
e. One-time costs to review 10 consecutive successful full analytical reports per lab
prior to qualifying for abridged reporting

Each participating lab would be required to provide 10 consecutive full analytical reports,
prior to qualifying for abridged reporting. For purposes of this analysis, we assume that each
participating lab would be accredited by a participating AB to two test methods of different
disciplines. We multiply the cost to review a full analytical report of $220.66 by 75 percent and
90 percent to account for cost savings from management systems improvements, assume 10
consecutive successes and that the two relevant disciplines are included in the 10 consecutive
successes, and multiply by the number of participating labs (between four and 25 participating
labs that test human and animal food offered for import covered under the proposed rule, with a
mean of 12, plus between 16 and 50 participating labs that test shell eggs, sprouts, bottled water
and for other tests subject to testing covered under the proposed rule, with a mean of 21). We
report the one-time costs for us to review 10 full analytical reports per lab and scope in Table 46.
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Table 46: One-time per lab cost for us to review full analytical reports to qualify for
abridged reporting
5th Percentile estimate
Mean estimate
95th percentile estimate
$43,738
$73,726.58
$103,667
f. Costs to review analytical reports
The proposed rule, if finalized, would require us to review analytical reports submitted by
participating labs for adherence to the proposed requirements and to notify the participating lab
of our findings. The current process for reviewing analytical reports of tests of human or animal
food offered for import covered under the proposed rule includes an initial check for
completeness upon receipt of the analytical report, a non-technical review of documents to
establish a link between the sample and the detained shipment as well as the adequacy of the
sample, and a high-level technical review that examines documentation to determine the
adequacy of the analytical methods used. We may require resampling of the shipment during the
non-technical review if the evidence suggests deficiencies on the sample collection. Moreover, a
reviewer may convene an expert panel to address any concerns about the analytical package that
may arise during the high-level technical review.
We assume that all participating labs would submit abridged analytical reports once they
have qualified to do so. Moreover, we assume between 10 percent and 25 percent time saved to
review an analytical report due to improvements in the management systems required for us to
implement the labs program. Consequently, we estimate the cost for us to review an abridged
analytical report including time saved from management systems improvements is between
$41.37 and $65.53 (from Table 12b review costs are between $55.16 and $72.82 per analytical

107

report, multiplied by between 10 percent and 25 percent review time saved from management
system improvements).
We assume we would incur costs to review all analytical reports of tests of shell-eggs,
sprouts and bottled water subject to specific testing and for other testing requirements from the
proposed rule. We assume we would not incur additional costs to review analytical reports
submitted for tests of human and animal food offered for import covered under the proposed rule
because that is the current baseline practice. Consequently, we estimate the costs for us to review
analytical reports from the proposed rule is between about $55,175 ($41.37 per analytical report
x [1,309 shell egg tests + 15 sprouts tests + 10 bottled water packages] x 75 percent due to costsavings from management systems improvements = $55,174.57) and about $385,559 ($65.53 per
analytical report x [7,030 shell egg tests + 15 sprouts tests + 15 bottled water packages] x 90
percent due to cost-savings from management systems improvements = $385,558.85. We assume
costs for us to review analytical reports of tests for other food subject to testing covered under
the proposed rule are included within this range).
g. Costs to assess participating labs
FDA may assess a participating lab to determine whether it complies with the proposed
requirements. We may review a participating lab’s records, conduct an on-site assessment, and
obtain any other related information. We assume that we would assess each participating lab
once every three to four years and that an assessment would take an assessor between 40 and 80
hours to complete. We multiply the hourly burden by the fully loaded wage of $116.75 to obtain
a cost of between about $23,350 (40 hours x $116.75 per hour x 20 participating labs / 4 years =
$23,349.81) and about $233,498 (80 hours x $116.75 per hour x 75 participating labs / 3 years =

108

$233,498.08) for FDA to assess each accredited lab once every three to four years, with an
average cost of about $128,424.
h. Summary of FDA costs
We report upper and lower bounds and annual frequencies of the costs to us from the
proposed rule by cost category in Tables 47.
Table 47: Summary of costs incurred by FDA
Lower
bound

Upper
bound

Frequency

$3,000,000

$3,000,000

One-time

Management systems maintenance costs

$500,000

$500,000

Annual

Recognizing ABs

$81,724

$163,449

One-time

$99,812.82

$262,613.39

Every 5
years

Maintain our website with information on
participating ABs and participating labs

$4,378

$10,799

Annual

Review of 10 full analytical reports per lab

$44,131

$165,492

One-time

Review notifications and analytical reports

$55,175

$385,559

Annual

Assess participating labs

$23,350

$233,498

Annual

Management systems upgrade

Renewing recognition of ABs

We use Monte Carlo methods to simulate the total annualized and present values of the
costs incurred by us. In Table 48, we present our estimate assuming uniform distributions
between the lower and upper bounds reported earlier in the section for each cost category. We
report the 5 percent estimates, 95 percent estimates, and means estimates of the total annualized
costs that would be incurred by us discounted at seven percent and three percent over 10 years.
Table 48: Estimated total annualized and present value of costs to FDA at discount rates of
7 percent and 3 percent over 10 years
5th percentile
95th percentile
Mean estimate
estimate
estimate
109

Annualized costs at 7 percent
Annualized costs at 3 percent
Present value of costs at 7 percent
Present value of costs at 3 percent

$1,118,524
$1,043,243
$4,057,503
$4,262,688

$1,308,178
$1,241,666
$5,863,161
$6,435,223

$1,500,061
$1,437,150
$7,755,387
$8,698,536

7. Summary of total annualized and present value of costs of the proposed rule discounted
at seven percent and at three percent over 10 years

We add together the costs incurred by ABs, costs incurred at the participating lab level,
costs incurred on a per test basis, costs incurred with fewer false negatives, learning costs, and
government costs in a Monte Carlo simulation model to estimate the 5 percent, mean and 95
percent range of the total annualized costs of the proposed rule. We report the estimated range of
total annualized costs from the proposed rule discounted over 10 years at seven percent and at
three percent in Tables 49a and 49b. We report the present values of the benefits and costs from
the proposed rule discounted by seven percent and by three percent over 10 years in Table 50.
Table 49a: Summary of total costs of the proposed rule annualized at seven percent over 10
years
5th percentile
Mean
95th percentile
estimate
estimate
estimate
AB costs

$105,457

$203,257

$341,244

Costs incurred at the lab level

$461,085

$2,148,893

$4,448,946

Costs incurred by test

$1,394,555

$2,296,107

$3,569,163

Cost incurred from fewer false
negatives

($84,668)

$2,561

$89,535

Learning costs

$594,845

$769,098

$943,352

Government costs

$1,118,524

$1,308,178

$1,500,061

Total annualized costs

$4,642,380

$6,728,094

$9,268,399

110

Table 49b: Summary of total costs of the proposed rule annualized at three percent over 10
years
5th percentile
Mean
95th percentile
estimate
estimate
estimate
AB costs

$100,668

$192,420

$317,123

Costs incurred at the lab level

$482,816

$2,150,116

$4,412,324

Costs incurred by test

$1,371,870

$2,296,107

$3,541,175

Costs incurred from fewer false
negatives

($84,668)

$2,561

$89,535

Learning costs

$676,978

$875,292

$1,073,606

Government costs

$1,043,243

$1,241,666

$1,437,150

Total annualized costs

$4,726,930

$6,758,162

$9,283,088

Table 50: Present value of the benefits and costs of the proposed rule discounted at 7
percent and 3 percent over 10 years
5th percentile
95th percentile
Mean estimate
estimate
estimate
Present value of costs at 7 percent
$34,161,713
$55,817,516
$77,986,344
Present value of costs at 3 percent
$38,735,842
$65,043,088
$91,655,772
Present value of benefits at 7 percent
$26,049,427
$53,064,669
$80,940,262
Present value of benefits at 3 percent
$31,637,263
$64,447,516
$98,302,675
We use a Monte Carlo simulation to subtract the total annualized costs of the proposed
rule reported from the total annualized benefits reported earlier. When discounted by seven
percent over 10 years, the annualized net benefits range between -$4,166,998and $5,566,821,
with a mean annualized net benefit of $827,121. When discounted by three percent over 10
years, the annualized net benefits range between -$3,477,558and $5,259,903 with a mean
annualized net benefit of $797,053. We report the annualized net benefits in Table 51.
Table 51: Annualized Net Benefits of the Proposed Rule Over 10 Years
5th percentile
Mean estimate
estimate
Annualized net benefits at 7 percent

-$4,166,998
111

$827,121

95th percentile
estimate
$5,566,821

Annualized net benefits at 3 percent

-$3,477,558

$797,053

$5,259,903

a. Distributional Effects
The proposed, if finalized, rule would affect the distribution of revenues from tests of
food offered for import covered under the proposed rule and from tests of shell-eggs, bottled
water and other foods subject to testing covered under the proposed rule. requirements.
Participating labs may incur between $52 thousand and $553 thousand in one-time costs to
participate in our program if they are not currently accredited to ISO/IEC 17025. Labs may
participate in our program if tests of food subject to DWPE and tests of shell-eggs and bottled
water subject to testing requirements comprise a significant share of their business, or if they
largely already meet the standards required for program participation, or a combination of both.
We expect there to be some laboratories that currently test human or animal food offered for
import covered under the proposed rule or test shell-eggs, sprouts and bottled water subject to
specific testing requirements that would forego that business rather than incur the one-time costs
associated with program participation. We expect the total revenue from testing human and
animal food covered under the proposed rule and from testing shell-eggs, sprouts and bottled
water subject to specific testing requirements to remain unchanged (or slightly higher if the price
of a test increases) from the proposed rule, but that it would become concentrated in a smaller
number of participating labs. We assume labs that would forego revenue from testing activities
covered by the proposed rule would not exit the industry but would continue to function as
businesses with slightly reduced revenues. We ask for comment on this assumption.
The proposed rule, if finalized, would also affect the distribution of revenue for ABs that
accredit laboratories that test human and animal food offered for import covered under the
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proposed rule and that test shell-eggs, sprouts bottled water and tests of other food subject to
testing covered under the proposed rule An AB may incur up to between 19 thousand and $28
thousand in one-time costs to participate in our program. ABs may not participate in our program
if few of its member labs would participate in our program. If an AB were not to participate in
our program, the labs they currently accredit would need to switch to a different AB if they
would participate in our program. We expect the proposed rule, if finalized, to result in fewer
than the current number of labs that test human and animal food offered for import covered
under the proposed rule or that test shell-eggs, sprouts and bottled water subject to specific
testing requirements. We expect that total revenue from accreditation fees paid by participating
and non-participating labs would remain unchanged (or slightly higher if the fees to accredit in
the labs program increase) from the proposed rule, if finalized. A small number of labs that
would participate in the labs program may switch to a participating AB if their current AB does
not participate in the labs program. We expect that all domestic ABs would participate in the labs
program. We assume that ABs that do not participate in our program would continue to function
as businesses but with slightly reduced revenues. We request comment on these assumptions.
b. International Effects
We expect the effects from the proposed rule, if finalized, on the level of international
trade to be small since the current share of tests of human and animal food offered for import
covered under the proposed rule conducted by international labs is small. We also expect the
effects of the proposed rule, if finalized, on the composition of international trade to be small.
There may be a slight redistribution of international ABs and labs that perform the tests of
human and animal food offered for import covered under the proposed rule across countries,
depending on the amount of food exported to the US. International labs and ABs from countries
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that export small amounts of human and animal food to the US may relinquish any business from
testing human and animal food offered for import covered under the proposed rule to a
competitor, likely located in a different country, rather than incur the one-time costs to
participate in the labs program.
c. Uncertainty and Sensitivity Analysis
We obtained 5 percent estimates, means and 95 percent estimates of the benefits, costs
and net benefits using Monte Carlo simulation methods. The means obtained using Monte Carlo
simulation methods are not different than the means that would be obtained using non-simulation
methods. However, Monte Carlo simulation methods provide 5 percent estimates and 95 percent
estimates that quantify the degree of uncertainty in the outputs (costs, benefits and net benefits).
Moreover, Monte Carlo simulation methods allow us to weigh the importance that the estimate
of each input contributes to the uncertainty in the corresponding output.
We estimate net benefits would range from -$4.2 million to $5.6 million, with a mean of
$0.83 million. The three most important sources of uncertainty in the estimate of the net benefits
include (1) uncertainty in the estimates of the percent fewer false negatives and false positives
from better tests of human and animal food offered for import covered under the proposed rule,
(2) uncertainty in the costs for labs to attain and maintain accreditation to ISO/IEC 17025, and
(3) industry cost-savings. Uncertainty in the estimate of the percent fewer false negatives and
fewer false positives from better tests of human or animal food offered for import covered under
the proposed rule adds between -$2.7 million and $4.0 million to the uncertainty in the net
benefits estimate. Uncertainty in the estimate of the costs to attain and maintain accreditation to
ISO/IEC 17025 contributes to between -$1.9 million and $2.6 million in uncertainty in the net
benefits estimate. Finally, uncertainty in the estimate of industry cost savings contributes to
114

between $0.38 million and $2.3 million in uncertainty in the net benefits estimate. We report the
three main sources of uncertainty in Table 52.

Table 52: Three primary sources of uncertainty in the net benefits estimate (mean net
benefit = $0.83 million)
Contribution to uncertainty Contribution to uncertainty
Source of uncertainty
(Lower bound)
(Upper bound)
Better tests of human and animal
food offered for import covered
-2.7 million
$4.0 million
under the proposed rule
Costs to attain and maintain
-$1.9 million
$2.6 million
accreditation to ISO/IEC 17025
Industry cost savings

-0.38 million

$2.3 million

G. Analysis of Regulatory Alternatives to the Proposed Rule
1.

Do not allow abridged reporting
Following 10 successful full analytical reports, a participating lab would thereafter be

allowed to submit abridged analytical reports. Abridged analytical reports would contain
information that would meet the ISO/IEC 17025 standard for reporting, but less than that needed
for us to replicate the test results. All information contained in a full analytical report would be
available to us on an as-needed basis. We estimated cost savings from compiling and reviewing
abridged analytical reports of tests of human and animal food offered for import covered under
the proposed rule as well as a reduced cost for compiling and reviewing analytical reports of tests
of shell-eggs, sprouts and bottled water and tests of other food subject to specific testing covered
under the proposed rule. By not allowing abridged reporting we estimate the mean net benefits
from the proposed rule would fall from $0.83 million to -$10.2 million.

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2.

Cover only tests of human and animal food offered for import covered under the
proposed rule
When only tests of human and animal food offered for import covered under the

proposed rule are subject to the proposed requirements, if finalized, labs that test shell-eggs,
sprouts, and bottled water would not be affected by the rule and analyses of shell-eggs, sprouts,
and bottled water would not be subject to the requirements of the proposed rule, if finalized. This
regulatory alternative is most consistent with current baseline practices for reporting test results
since currently only analytical reports of tests of human and animal food offered for import
covered under the proposed rule are regularly submitted to us. By not covering tests of shelleggs, sprouts, bottled water and other tests subject to specific testing requirements the mean net
benefits of the rule would increase from $0.83 million to $2.7 million.
3. Prohibit in-house testing
Internal information indicates between 3.3 percent and 7.5 percent of all tests of human
and animal food offered for import covered under the proposed rule currently may be performed
by in-house labs. We assume this range also applies to tests of shell-eggs, sprouts and bottled
water subject to specific testing requirements. We ask for comment on the percent of tests of
shell-eggs, sprouts and bottled water subject to specific testing requirements that are performed
by in-house labs. Consequently, prohibiting in-house testing may result in switching costs for up
to an additional 3.3 percent to 7.5 percent of all tests covered under the proposed rule – or up to
an additional 397 to 1,633 tests.
The switching costs estimated earlier for the proposed rule were from between 133 and
5,869 tests currently performed by labs not accredited to ISO/IEC 17025. We assume between 0
and 100 percent of in-house labs that perform tests covered under the proposed rule are also not
116

accredited to ISO/IEC 17025 and shouldn’t be counted in the estimate of the additional switching
costs incurred from this regulatory alternative. Consequently, we estimate the additional
switching costs incurred from this option would be between $1,722 and $284,221, with a mean
of $80,900.
Table 53: A comparison of regulatory alternatives with the proposed rule
Comparison with the
proposed rule

Reason not
selected

Do not allow abridged reporting

Mean net benefits fall from
$0.83 million to -$10.2 million

Too costly

Cover only tests of human and
animal food offered for import
covered under the proposed rule

Mean net benefits increase from
$0.83 million to $2.7 million

Inconsistent with
Statute

Prohibit in-house testing

Total switching costs increase
by between $1,722 and
$284,221, with a mean increase
of $80,900.

Too costly

Regulatory alternative

III.

Initial Small Entity Analysis
FDA has examined the economic implications of this proposed rule as required by the

Regulatory Flexibility Act (5 U.S.C. 601–612). If a rule has a significant economic impact on a
substantial number of small entities, the Regulatory Flexibility Act requires agencies to analyze
regulatory options that would lessen the economic effect of the rule on small entities. Because
the costs of the proposed rule may have a significant impact on a substantial number of small
entities, we consider the possibility of extended compliance dates for those labs not currently
accredited to ISO/IEC 17025 to participate in the program.

117

A. Description and Number of Affected Small Entities
The primary impact of this rule will be on accreditation bodies and testing laboratories.
Importers, shell-egg producers, sprouts producers and bottled water producers and other food
manufacturers would also be affected by the proposed rule. The Small Business Administration
(SBA) reports size standards for industry categories defined by North American Industry
Classification System (NAICS) codes (Ref 20). Using the SBA’s standards, testing laboratories
(NAICS 54138) are considered small if they earn $15 million revenue or less, chicken-egg
producers (NAICS code 112320) are considered small if they earn $15 million in revenues or
less, and bottled water manufacturers (NAICS 312112) are considered small if they have fewer
than 1,000 employees. We assume the SBA standard of small for Perishable Prepared Food
Manufacturing (NAICS 311991) of 500 or fewer employees applies to sprouts producers and
importers, and we assume the SBA standard of small for All Other Professional, Scientific and
Technical Services (NAICS 541990) of $15 million or less would apply to accreditation bodies.
We apply data from the Economic Census by NAICS code to determine the numbers of
accreditation bodies, testing labs, shell egg producers, bottled water producers and sprouts
producers and importers that are small by the SBA standards. The 2012 Economic Census
reports that over 95 percent of all testing laboratories under NAICS code 54138 have annual
revenues below $15 million, over 95 percent of bottled water manufacturers under NAICS
312112 have fewer than 1,000 employees (Ref. 21) and over 85 percent of establishments under
NAICS 311991 (including sprouts manufacturing establishments) have fewer than 100
employees. We assume that the number of sprouts growers with more than 100 employees is
distributed uniformly between 100 employees and more than 500 employees, by increments of
100, so that fewer than 3 percent of sprouts manufacturing establishments have more than 500
118

employees. Moreover, consistent with the regulatory impact analysis of the Final shell-egg rule,
over 99 percent of shell-egg producers (NAICS code 112320) covered by this proposed rule
would be considered small as well. For purposes of this analysis, we assume that 100 percent of
ABs, labs, shell-egg producers, and sprouts, importers and bottled water manufacturers affected
by this proposed rule are small.
We compare the costs per entity from the proposed rule with the average revenue per
establishment by NAICS code obtained from the 2012 Economic Census. We obtain the average
revenue per establishment by dividing the total revenue reported in the 2012 Economic Census
for each NAICS code by the total number of establishments reported for the corresponding
NAICS code. We obtain the average revenue per testing laboratory of $2,502,209, the average
revenue per accreditation body of $904,257, the average revenue per sprouts producer of
$14,468,090 and the average revenue per bottled water manufacturer of $19,520,408. We derive
the average revenue per shell-egg producer ($1,022,458) from information reported in Table 39
of the Regulatory Flexibility Analysis for the Shell-egg final rule. We report the NAICS codes,
SBA thresholds, the numbers of entities, and the average revenue per entity covered by the
proposed rule in Table 54.

Table 54: Entities affected by the proposed rule
Number of
Establishments

Annual
Revenue
($ million)1

Revenue per
Establishment
($ thousand)

SBA Size
Standard

6,045

$15,125.86

$2,502.21

$15 million

12,294

$11,116.93

$904.26

$15 million

702

$10,156.60

$14,468.09

500 employees

1

Testing laboratories, NAICS
541381
Accreditation bodies, (All
Other Professional, Scientific
and Technical Services)
NAICS 5419909
Sprouts producers and
importers (Perishable Prepared

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Food Manufacturing), NAICS
311991
Bottled water manufacturers,
NAICS 312112
Shell-egg producers, NAICS
code 112310 2
1
2

294

$5,739.00

$19,520.41

1,000
employees

7,359

$7,524.27

$1,022.46

$15 million

No. of Establishments and Annual Revenue reported in the 2012 Economic Census
No of Establishments and Revenue per Establishment derived from figures reported in Table 39 of the Regulatory
Flexibility Act for the Shell-egg Final rule

B. Description of the Potential Impacts of the Rule on Small Entities
The Regulatory Flexibility Act requires us to analyze regulatory options that would
minimize any significant impact of a rule on small entities. In the Preliminary Regulatory Impact
Analysis, we estimate the one-time and annual costs for accreditation bodies, testing laboratories,
shell-egg, sprouts, importers and bottled water producers. We use a Monte Carlo simulation to
estimate the 5 percent, mean and 95 percent levels of one-time costs per entity using the
distributional assumptions discussed in the Regulatory Impact Analysis. ABs that choose to
participate in our program would incur one-time costs to apply for recognition, establish an
accreditation program, as well as to learn about the rule equaling between about $19,000 and
$28,000 per entity. Participating labs would incur one-time costs to become accredited to
ISO/IEC 17025 and to learn about the rule. One-time costs for labs already accredited to
ISO/IEC 17025 would equal between about $600 and about $740 per lab. One-time costs for labs
that choose to participate in the labs program but are not accredited to ISO/IEC 17025 would
equal between about $52,000 and about $553,000. Shell-egg producers, sprouts producers,
importers and bottled water manufacturers would incur one-time costs to learn about the rule
equaling between about $600 to about $737. Importers would incur costs to learn about the rule.
We report the one-time costs per entity from this proposed rule in Table 55.
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Table 55: One-time per entity costs of the proposed rule
5th percentile
estimate

Mean
estimate

95th percentile
estimate

$19,301.02

$23,544.06

$27,677.50

$603.17

$670.26

$737.24

$52,126.08

$259,476.26

$553,164.33

Bottled water manufacturers

$603.17

$670.26

$737.24

Shell-egg producers

$603.17

$670.26

$737.24

Sprouts producers and importers

$603.17

$670.26

$737.24

ABs that choose to participate
Labs that choose to participate that are
currently accredited to ISO/IEC 17025
Labs that choose to participate that are
currently not accredited to ISO/IEC
17025

The range in one-time costs for ABs that choose to participate in our program is between
2.1 percent and 3.1 percent of average revenue per entity. We report the range in one-time costs
for labs that choose to participate in our program for labs that are already accredited to ISO/IEC
17025 and those that are not yet accredited to ISO/IEC 17025. Labs that would participate in the
labs program and are currently accredited to ISO/IEC 17025 would incur one-time costs of
between 0.024 percent and 0.029 percent of the average revenue per entity. Labs that would
participate in the labs program but are currently not accredited to ISO/IEC 17025 would incur
one-time costs of between 10.4 percent and 22.1 percent of the average revenue per entity. The
range in one-time costs for bottled water manufacturers is between 0.003 percent and 0.004
percent of the average revenue per entity, the one-time costs for shell-egg producers is between
0.065 percent and 0.072 percent of the average revenue per entity, and the one-time costs for
sprouts producers and importers is between 0.005 percent and 0.005 percent of the average
revenue per entity. We report the costs per entity as a percent of average revenue per entity, for
all entities affected by the proposed rule are reported in Table 56.
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Table 56: One-time per entity costs as a percent of average per entity revenue
Costs as a
Costs as a
Costs as a
percent of
percent of
percent of
revenue
revenue
revenue
(lower bound) (mean estimate)
(upper bound)
ABs participating in the program

2.1345%

2.6037%

3.0608%

0.0241%

0.0268%

0.0295%

2.0832%

10.3699%

22.1070%

Bottled water manufacturers

0.0031%

0.0034%

0.0038%

Shell-egg producers

0.0590%

0.0656%

0.0721%

Sprouts producers and importers

0.0042%

0.0046%

0.0051%

Labs participating in the program
currently accredited to ISO/IEC
17025
Labs participating in the program not
currently accredited to ISO/IEC
17025

We consider costs per entity over and above one percent of annual revenues to be a
substantial impact. All estimates of the costs per entity for labs not currently accredited to
ISO/IEC 17025 exceed one percent of annual revenues. The largest share of one-time costs
incurred by these entities would be from becoming accredited to ISO/IEC 17025. We ask for
comment on the number of labs that are currently not accredited to ISO/IEC 17025 that would
participate in the labs program.
We do not know the number of labs that would participate in the labs program and
assume that those that would choose not to participate currently earn only small share of their
business from tests that would now require a participating lab. Consequently, we assume that any
lab that currently performs tests referred to in this proposed rule and chooses not to participate in
the labs program would not forgo enough business as to cease its operations. Rather, we assume

122

that labs that choose not to participate in the labs program would continue operating as labs but
with slightly reduced incomes. We ask for comment on this assumption.
C. Alternatives to Minimize the Burden on Small Entities
As a regulatory option to minimize the burden on small entities we consider extending
compliance dates for ABs and corresponding labs that currently perform analyses covered in this
proposed rule but are not accredited to ISO/IEC 17025 so that they can continue performing
these analyses while taking steps to acquire ISO accreditation. The one-time costs incurred by
labs that choose to participate in our program could be between $52 thousand and $553 thousand
if they are not yet accredited to ISO/IEC 17025. This option would prevent a loss of business for
these labs (and ABs) in the short term while enhancing the supply of participating labs that could
perform the analyses required in the proposed rule. We request comment on the number of ABs
accrediting these labs and the number of labs that currently perform tests covered by the
proposed rule but are not accredited to the ISO/IEC 17025 but would continue to perform these
tests following publication of a final rule if we were to extend compliance dates.

123

IV.

References
1. 69 FR 23460, April 29, 2004
2. 74 FR 3056, Jan. 16, 2009.
3. Middlebrook, Ken, “Do accredited laboratories perform better in proficiency testing than
non-accredited laboratories?”, Accreditation and Quality Assurance (22) 2017
4. FDA Memo to Administrative Record, “Assessment of DWPE sampling and analysis
data to determine what portion of sampling and analysis of food under DWPE is
conducted by accredited entities. ” From Tyler Scandalios and Toni Morales, November
20, 2018
5. FDA Memo to Administrative Record, “Use of Labs by the Shell-Egg Industry.” From
Andrew Estrin, July 15, 2015
6. Shell-egg Final rule, 74 FR 33029, July 9, 2009
7. Produce Safety final rule, 80 FR 74353, November 27, 2015
8. Bottled Water final rule, 74 FR, 74, No. 102, 5/29/2009
9. Thompson, Michael; Kenneth Mathieson; Linda Owen; Andrew P. Damant; Roger
Wood, “The relationship between accreditation status and performance in a proficiency
test,” Accreditation and Quality Assurance, 14, 2009
10. FDA, Serving Size final rule, 81 FR 34000, May 27, 2016)
11. FDA, “Modeling the Effects of Food Handling Practices on the incidence of Foodborne
Illness, Final Report” ERG Task No. 0193.16.004.001, March 18, 2009
12. Minor, Travis, Angela Lasher, Karl Klontz, Bradley Brown, Clark Nardinelli, and David
Zorn; “The Per Case and Total Annual Costs of Foodborne Illness in the United States,”
Risk Analysis; June 35(6):1125-39, 2014
13. USDA Farm Price Received report for 2016 USDA Farm Price Received,
https://ycharts.com/indicators/us_egg_price
14. CNN, www.cnn.com/2014/08/30/us/peanut-salmonella-trial/)
15. US Department of Labor, Bureau of Labor Statistics, Occupational Employment
Statistics, Occupational Employment and Wages, May 2017
https://www.bls.gov/oes/current/oes119121.htm, accessed September 17, 2018.
16. Association of Public Health Laboratories, “Laboratory Costs of ISO/IEC 17025
Accreditation: A 2017 Survey Report.” February 2018.
17. UPS retail rates, https://www.ups.com/media/en/retail_rates.pdf
18. FDA, Compliance Program Guidance Manual, Program 7303.819, Chapter 3.
19. FDA, Bacteriological Analytical Manual, Chapter 1, Food Sampling and Preparation of
Sample Homogenate, April 2003, https://www.fda.gov/food/laboratory-methods-foodsafety/bam-food-samplingpreparation-sample-homogenate, accessed on June 26, 2019.
20. U.S. Small Business Administration, Table of Small Business Size Standards Matched to
North American Industry Classification System Codes.
21. 2012 Economic Census,
https://www.census.gov/data/tables/2012/econ/census/manufacturing-reports.html
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