[Senate Report 110-420]
[From the U.S. Government Publishing Office]



110th Congress 
 2d Session                      SENATE                          Report
                                                                110-420
_______________________________________________________________________

                                     

                                                       Calendar No. 880

               COMMERCIAL SEAFOOD CONSUMER PROTECTION ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2688



                                     


                 July 15, 2008.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                       one hundred tenth congress
                             second session

                   DANIEL K. INOUYE, Hawaii, Chairman
                   TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER, IV, West        JOHN McCAIN, Arizona
    Virginia                         KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        GORDON H. SMITH, Oregon
BARBARA BOXER, California            JOHN ENSIGN, Nevada
BILL NELSON, Florida                 JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington           JIM DeMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
MARK PRYOR, Arkansas                 JOHN THUNE, South Dakota
THOMAS CARPER, Delaware              ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
          Margaret Cummisky, Staff Director and Chief Counsel
         Lila Helms, Deputy Staff Director and Policy Director
       Jean Toal Eisen, Senior Advisor and Deputy Policy Director
     Christine Kurth, Republican Staff Director and General Counsel
                Paul J. Nagle, Republican Chief Counsel
             Mimi Braniff, Republican Deputy Chief Counsel


                                                       Calendar No. 880


110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-420

======================================================================



 
               COMMERCIAL SEAFOOD CONSUMER PROTECTION ACT

                                _______
                                

                 July 15, 2008.--Ordered to be printed

                                _______
                                

       Mr. Inouye, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 2688]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2688) to improve the 
protections afforded under Federal law to consumers from 
contaminated seafood by directing the Secretary of Commerce to 
establish a program, in coordination with other appropriate 
Federal agencies, to strengthen activities for ensuring that 
seafood sold or offered for sale to the public in or affecting 
interstate commerce is fit for human consumption, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment (in the nature of a substitute) and 
recommends that the bill (as amended) do pass.

                          PURPOSE OF THE BILL

  The purpose of S. 2688, the Commercial Seafood Consumer 
Protection Act, is to improve the protections afforded under 
Federal law to consumers from contaminated seafood by 
strengthening the National Oceanic and Atmospheric 
Administration (NOAA) seafood inspection program to ensure that 
commercially distributed seafood sold in the United States is 
fit for human consumption. The bill, as reported, addresses 
comments from a wide variety of stakeholders interested in the 
bill, including representatives of the fishing and aquaculture 
industries, conservation organizations, research institutes, 
the NOAA, the Senate Committee on Health, Education, Labor and 
Pensions, the Food and Drug Administration (FDA), and the 
Senate Committee on Finance.

                          BACKGROUND AND NEEDS

  While the FDA is the primary government agency that manages 
food health and safety, the National Marine Fisheries Service 
(NMFS) provides the public with information regarding imported 
seafood products in the United States. The NMFS also conducts a 
voluntary seafood inspection program on a fee-for-service basis 
under the authority of the Agricultural Marketing Act of 1946. 
This program employs approximately 170 people and is entirely 
funded from fees it collects for its services. It primarily 
utilizes one NMFS laboratory located in Pascagoula, 
Mississippi, to test fish samples for a variety of contaminants 
and antibiotics. On very rare occasions, the NMFS will allow 
for samples to be verified and inspected at local, certified 
labs. In addition, approximately 35 foreign facilities on an 
approved list are certified to perform inspections, and more 
facilities are being certified. It is important to note, 
however, that meeting inspection standards at these overseas 
facilities do not nullify the FDA standards or the mandatory 
Hazard Analysis and Critical Control Point (HACCP) requirements 
necessary to pass FDA import standards. All products inspected 
by facilities certified by NMFS are still subject to inspection 
by the FDA upon entry into the United States.
  In 2005, more than 84 percent of the total fish and shellfish 
consumed in the United States were imported, compared to 55 
percent in 1995. China is the second largest exporter of 
seafood to the United States, with Canada being the largest. 
China's seafood imports into the United States were valued at 
$1.9 billion in 2006, an increase of 193 percent from a value 
of $550 million in 2001. This bill was prompted in part by the 
2007 discovery of tainted Chinese seafood imports that 
contained illegal antimicrobials, potentially cancer-causing 
contaminants.
  The NMFS seafood inspection program provides services beyond 
the mandatory HACCP requirements including: vessel and plant 
sanitation, product inspection, grading and certification, 
label review, laboratory analysis, training, and consultative 
and informational services. Participants in the NMFS seafood 
inspection program may use official marks on compliant products 
to indicate they are federally inspected. This is vital for 
U.S. exports to be accepted abroad, particularly in the 
European Union where a FDA certification is required on all 
seafood products entering their markets. The NMFS's program 
provides these certification services for approximately 2,500 
foreign and domestic firms annually. The seafood inspection 
program has been very successful, affecting approximately 20 to 
25 percent of domestic and imported seafood consumed in the 
United States.
  In a January 2004 Government Accountability Office (GAO) 
report titled, ``FDA's Imported Seafood Safety Program Shows 
Some Progress, but Further Improvements are Needed,'' the GAO 
recommended that the NMFS provide staff from its seafood 
inspection program to bolster the FDA's inspection 
capabilities. Currently, the NMFS is working with the FDA to 
finalize a Memorandum of Understating (MOU) which includes 
language authorizing the use of NMFS staff to increase and 
support the FDA's efforts.
  The Committee believes it is important to strengthen the MOU 
that the NMFS seafood inspection program is finalizing with the 
FDA to ensure that the NMFS and the FDA work efficiently and 
effectively together to ensure seafood sold or offered for sale 
to the public is fit for human consumption. The Committee 
believes that an increase in the number of laboratories 
certified by the FDA in both the United States and in countries 
that export seafood to the United States is important for 
increasing our ability to monitor seafood. The Committee 
believes it is necessary to have increased monitoring over 
imported seafood; therefore, this bill would establish an 
optional procedure for dealing with cases where contaminated 
shipments enter the United States and increase the number of 
inspectors who are sent to a country or exporter of seafood 
products to the United States to ensure that the seafood 
products are of a standard consistent with the requirements 
established under the Federal Food, Cosmetic, and Drug Act (21 
U.S.C. 301 et.seq.). The bill would authorize $15 million for 
each of fiscal years 2009 through 2013.

                          LEGISLATIVE HISTORY

  S. 2688 was introduced in the Senate on March 4, 2008, by 
Senator Inouye and is co-sponsored by Senators Stevens, 
Murkowski, Bill Nelson, and Vitter. The bill was referred to 
the Committee on Commerce, Science, and Transportation. On 
April 24, 2008, the Committee considered the bill in an open 
executive session. Senators Inouye and Stevens offered a 
substitute amendment, and the Committee, without objection, 
ordered S. 2688 to be favorably reported with an amendment in 
the nature of a substitute.
  Staff assigned to this legislation include Amanda Hallberg, 
Democratic professional staff, and Todd Bertoson, Republican 
senior counsel.

                            ESTIMATED COSTS

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 11, 2008.
Hon. Daniel K. Inouye,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2688, the Commercial 
Seafood Consumer Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Tyler 
Kruzich.
            Sincerely,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

S. 2688--Commercial Seafood Consumer Protection Act

    Summary: S. 2688 would require the Departments of Commerce 
and Health and Human Services to strengthen federal efforts 
related to ensuring the safety of commercially distributed 
seafood.
    Based on information from the Department of Commerce, CBO 
estimates that implementing S. 2688 would cost $66 million over 
the 2009-2013 period and $9 million after 2013, assuming 
appropriation of the amounts authorized by the bill. Enacting 
S. 2688 would not affect direct spending or revenues.
    S. 2688 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would not affect 
the budgets of state, local, or tribal governments.
    By directing the Secretary of Health and Human Services to 
enter into a cooperative agreement with the Secretary of 
Commerce and modifying the Food and Drug Administration's 
(FDA's) authority to regulate seafood safety, the bill could 
impose new mandates on the private sector as defined in UMRA. 
However, CBO cannot determine whether the aggregate direct cost 
of complying with those mandates, if any, would exceed the 
annual threshold established in UMRA ($136 million in 2008, 
adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 2688 is shown in the following table. 
The costs of this legislation fall within the budget functions 
300 (natural resources and environment) and 550 (health).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                              --------------------------------------------------
                                                                2009    2010    2011    2012    2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level..........................................      15      15      15      15      15        75
Estimated Outlays............................................       9      12      15      15      15        66
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted near the start of fiscal year 2009 
and that the authorized amounts will be appropriated near the 
start of each year. Estimates of outlays are based on 
historical spending patterns for similar activities.
    S. 2688 would require the Departments of Commerce and 
Health and Human Services to strengthen federal efforts related 
to ensuring the safety of commercially distributed seafood. 
Based on information from the Department of Commerce, CBO 
expects that funds authorized to be appropriated by the bill 
would be used to increase the number of domestic and 
international laboratories that inspect seafood. Funds also 
would be used to send inspection teams to countries that export 
seafood to the United States to assess practices used in the 
farming of seafood for export. Assuming appropriation of the 
authorized amounts ($15 million annually over the 2009-2013 
period), CBO estimates that implementing S. 2688 would cost $66 
million over that period and $9 million after 2013.
    Estimated impact on State, local, and tribal governments: 
S. 2688 contains no intergovernmental mandates as defined in 
UMRA and would not affect the budgets of State, local, or 
tribal governments.
    Estimated impact on the private sector: Section 2 of the 
bill would direct the Secretary of Health and Human Services to 
enter into a cooperative agreement with the Secretary of 
Commerce to address and coordinate various regulations in order 
to improve seafood safety. Efforts to carry out the agreement 
could lead to more stringent requirements on importers, 
exporters, sellers, and distributors of seafood. For example, 
section 2 would direct the agencies to include a provision in 
their agreement to establish a domestic tracking system for 
seafood shipments. A tracking system could require recipients 
and distributors of shipments to provide additional 
information. Because the provisions of the agreement depend on 
the future actions of FDA and the National Oceanic and 
Atmospheric Administration, CBO cannot determine whether they 
would result in new private-sector mandates. Further, section 5 
of the bill would modify FDA's current authority to regulate 
seafood safety by authorizing the agency to use additional 
procedures for handling seafood imports. The extent to which 
these provisions would result in new private-sector mandates is 
also unclear.
    CBO has no basis for predicting what new procedures the 
agencies would set under the bill, if any, or whether those 
procedures would impose additional requirements on the seafood 
industry. Therefore, CBO cannot determine whether the aggregate 
direct cost of complying with new private-sector mandates that 
may arise as a result of the bill would exceed the annual 
threshold established in UMRA ($136 million in 2008, adjusted 
annually for inflation).
    Estimate prepared by: Federal Costs: Tyler Kruzich and 
Jeffrey LaFave; Impact on State, Local, and Tribal Governments: 
Elizabeth Cove; Impact on the Private Sector: MarDestinee 
Perez.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT STATEMENT

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

Number of persons covered

  S. 2688, as reported, would authorize appropriations to 
continue and expand an existing NOAA program. This bill would 
have little, if any, regulatory impact.

Economic impact

  This bill, as reported, would provide authorization of $15 
million for each fiscal year from 2009 through 2013 for NOAA to 
carry out the purpose of this bill. These funding levels are 
not expected to have an inflationary impact on the Nation's 
economy.

Privacy

  The reported bill would have little, if any, impact on the 
personal privacy of U.S. citizens.

Paperwork

  The reported bill would not increase paperwork requirements 
for the private sector. The NOAA and the FDA's paperwork 
requirements may increase slightly due to increasing the 
certification of laboratories and the report the inspection 
teams are required to publish with their findings.

                   CONGRESSIONALLY DIRECTED SPENDING

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

  This section would establish the short title of this Act as 
the ``Commercial Seafood Consumer Protection Act.''

Section 2. Seafood safety

  This section would require the Secretary of Commerce, in 
coordination with the Secretary of Health and Human Services, 
to strengthen Federal activities for ensuring compliance and 
quality with regard to commercially distributed seafood.
  Additionally, this section would require the Secretary of 
Commerce and the Secretary of Health and Human Services to 
enter into an MOU to create an infrastructure that would 
provide a better system for importing safe seafood. This 
agreement would include provisions on how to achieve the 
following:
           Examine and test imported seafood;
           Inspect foreign facilities;
           Provide technical assistance and training to 
        foreign facilities and governments;
           Expedite seafood imports from countries with 
        consistently high standards;
           Generate a shipment tracking system;
           Create labeling requirements;
           Commission NOAA officers and employees to 
        examine seafood;
           Share information concerning non-compliance 
        and new regulation; and
           Conduct joint training on subjects related 
        to seafood inspection.

Section 3. Certified laboratories

  This section would require the Secretary of Commerce, in 
consultation with the Secretary of Health and Human Services, 
to increase the number of laboratories certified to the 
standards of the FDA to analyze seafood both in the United 
States and in foreign nations that export seafood to the United 
States.

Section 4. NOAA laboratories

  This section would increase the number and/or capacity of 
NOAA laboratories that are involved with the NMFS service 
seafood inspection program.

Section 5. Contaminated seafood

  This section would establish an optional procedure for 
dealing with cases where contaminated shipments are found 
entering the United States or if the Secretary determines that 
seafood from a given country is not likely to meet Federal 
standards. It would allow the Secretary of Health and Human 
Services to refuse imported contaminated seafood and/or request 
increased testing of seafood originating from countries where 
there is reasonable evidence of contamination. It would allow 
individual shipments to be admitted into the United States if 
there was laboratory evidence that the shipment is consistent 
with the requirements Federal Food, Cosmetic, and Drug Act (21 
U.S.C. 301 et.seq.).

Section 6. Inspection teams

  This section would authorize the Secretary of Commerce and 
the Secretary of Health and Human Services to send inspectors 
overseas to assess the methods used by seafood exporters to 
ensure they are consistent with the requirements Federal Food, 
Cosmetic, and Drug Act (21 U.S.C. 301 et.seq.).

Section 7. Authorization of appropriations

  This section would authorize the appropriation of $15,000,000 
for each fiscal year from 2009 through 2013 to implement the 
provisions of S. 2688.

                        CHANGES IN EXISTING LAW

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, the Committee states that the bill as 
reported would make no change to existing law.

                                  
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