[Senate Report 112-131]
[From the U.S. Government Publishing Office]
112th Congress Report
SENATE
2d Session 112-131
_______________________________________________________________________
Calendar No. 297
COMMERCIAL SEAFOOD CONSUMER PROTECTION ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 50
January 26, 2012.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred twelfth congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas ROY BLUNT, Missouri
CLAIRE McCASKILL, Missouri JOHN BOOZMAN, Arkansas
AMY KLOBUCHAR, Minnesota PATRICK J. TOOMEY, Pennsylvania
TOM UDALL, New Mexico MARCO RUBIO, Florida
MARK WARNER, Virginia KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska DEAN HELLER, Nevada
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
Todd Bertoson, Republican Staff Director
Jarrod Thompson Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel
Calendar No. 297
112th Congress Report
SENATE
2d Session 112-131
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COMMERCIAL SEAFOOD CONSUMER PROTECTION ACT
_______
January 26, 2012.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 50]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 50) to strengthen Federal
consumer product safety programs and activities with respect to
commercially-marketed seafood, by directing the Secretary of
Commerce to coordinate with the Federal Trade Commission (FTC)
and other appropriate Federal agencies to strengthen and
coordinate those programs and activities, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
Purpose of the Bill
The purpose of S. 50, the Commercial Seafood Consumer
Protection Act, is to improve the protections afforded under
Federal law to consumers from contaminated seafood by
strengthening the National Marine Fisheries Service (NMFS)
Seafood Inspection Program (SIP), within the National Oceanic
and Atmospheric Administration (NOAA), to ensure that
commercially distributed seafood sold in the United States is
fit for human consumption.
Background and Needs
According to NOAA in the Department of Commerce, 84 percent
of the finfish and shellfish consumed in the United States in
2010 was imported (compared to 55 percent in 1995), and of the
seafood imported into the United States, approximately 50
percent is produced by aquaculture.\1\ China and Thailand are
the largest exporters of seafood to the United States,
accounting for roughly 23 percent and 16 percent of U.S.
seafood imports, respectively.\2\ In monetary terms, U.S.
seafood imports from China were valued at $2.4 billion in 2010,
an increase of 336 percent from $550 million in 2001.\3\
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\1\National Oceanic and Atmospheric Administration. National Marine
Fisheries Service, FishWatch-U.S. Seafood Facts: Trade (Sept. 8, 2010),
http://www.nmfs.noaa.gov/fishwatch/trade_and_aquaculture.htm.
\2\Id.
\3\National Marine Fisheries Service, Fisheries Statistics & Econ.
Div., Trade Balance by Country: China, 2010 (April, 2011), http://
www.st.nmfs.noaa.gov/pls/webpls/
trade_balance_c.results?qyear=2010&qcountry=5700&qoutput=TABLE.
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While the Food and Drug Administration (FDA) is the primary
government agency that manages food safety and food health
issues, NOAA's NMFS provides the general public with
information regarding seafood products that are imported into
the United States, and also conducts a voluntary SIP. The SIP
works with the seafood industry to improve the overall quality
and marketability of seafood and ensure that all processing
firms are compliant with FDA and Department of Commerce
regulations. It operates under the authority of the
Agricultural Marketing Act of 1946\4\ and the Fish and Wildlife
Act of 1956\5\ and ostensibly coordinates its efforts with
those of FDA under a long-standing memorandum of understanding
(MOU) between NOAA and FDA.\6\ The SIP offers a variety of
services to industry, most notably inspection and testing of
seafood products and certifying compliance with Hazard Analysis
Critical Control Point (HACCP) requirements. The SIP employs
approximately 170 people and operates on a fee-for-service
basis. Presently, it is funded entirely by the fees it collects
for its services and uses no appropriated funds for its
operation.
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\4\Agricultural Marketing Act of 1946, 7 U.S.C. 1621-1638d
(2010).
\5\Fish and Wildlife Act of 1956, 16 U.S.C. 742a-742j (2009).
\6\Memorandum of Understanding Between U.S. Dept. of Commerce Nat'l
Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Service and U.S.
Dept. of Health, Education, & Welfare Food & Drug Admin. (1974).
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NMFS maintains the in-house scientific capability to support
seafood inspection and product quality testing services at its
National Seafood Inspection Laboratory in Pascagoula,
Mississippi. On very rare occasions, NMFS also will allow
samples to be verified and inspected at local, certified labs.
In addition, 40 foreign facilities on an approved list are
certified to perform inspections, and more facilities are being
certified by the SIP. It is important to note that meeting
inspection standards at these overseas facilities does not
nullify FDA standards or the mandatory HACCP requirements
necessary for importation. All products inspected at NMFS-
certified facilities are still subject to inspection by FDA
upon entry into the United States.
The SIP provides services beyond HACCP certification and
product inspection and testing, including vessel and plant
sanitation, label review, laboratory analysis, training, and
consultative and informational services. Those who participate
in the SIP may use official marks on complying products, which
indicate they were federally inspected. This is vital to U.S.
exports to certain markets; for example, the European Union
requires a certification label on all imported seafood
products. The SIP provides these certification services for
approximately 2,500 foreign and domestic firms annually. Based
on 2008 per capita consumption data, approximately 34 percent
of seafood consumed in the United States is certified under the
auspices of the SIP.\7\ By all accounts, the SIP is regarded as
an effective and successful program for assuring the quality,
wholesomeness, safety, proper labeling, and marketability of
fish and fishery products.
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\7\Nat'l Marine Fisheries Service, Fisheries of the United States
2009, at 83 (2010).
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In January 2001, a report by the Government Accountability
Office (GAO) first raised concerns about the effectiveness of
FDA's seafood safety inspection program and the adequacy of FDA
inspection and laboratory resources.\8\ In its recommendations,
GAO focused on means by which FDA might better leverage its
resources in order to provide greater assurance that seafood--
particularly imported seafood--is safe.\9\ One of the key
reasons for the 1974 MOU between NMFS and FDA was to enhance
FDA's efficient use of its inspection resources by minimizing
FDA inspections of firms already inspected by NMFS.\10\ The MOU
states, among other things, that FDA will:
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\8\See U.S. Gov't Accountability Office, Food Safety: Federal
Oversight of Seafood Does Not Sufficiently Protect Consumers (2001).
\9\Id. 58.
\10\Memorandum of Understanding between U.S. Dep't of Commerce
Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Service &
U.S. Dep't of Health, Education, & Welfare Food & Drug Admin. (1974).
Recognize that the NMFS service provided in connection
with the voluntary inspection of fishery processing
establishments contributes to the protection of
consumers and aids FDA in enforcement of pertinent
statutes. The NMFS inspection service will not diminish
FDA's authority to inspect but should minimize FDA
inspections in establishments under NMFS contract
inspection. In this regard, NMFS inspectors shall
routinely notify contract establishments of pertinent
FDA requirements, advise them on how to comply and
verify compliance. NMFS inspectors may not act as FDA
inspectors but their inspections and consultations with
FDA should reduce the necessity for FDA
inspections.\11\
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\11\Id.
In March 2005, one of several follow-up reports by GAO
concluded that FDA had not yet fulfilled this and other
commitments under the 1974 MOU with NMFS and that, in some
cases, FDA was still unnecessarily duplicating NMFS
inspections.\12\ Roughly a year earlier, in a 2004 report
requested by several Members of this Committee, GAO noted
ongoing concerns expressed by FDA regarding its limited
resources and competing priorities.\13\ GAO recommended in
response that NMFS put SIP personnel at FDA's disposal to
bolster FDA's provision of various services, potentially
including inspections of foreign firms, importer inspections,
port-of-entry examinations and sample collections, and
laboratory analyses.\14\ FDA did not pursue this strategy with
NMFS.
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\12\U.S. Gov't Accountability Office, Oversight of Food Safety
Activities: Federal Agencies Should Pursue Opportunities to Reduce
Overlap and Better Leverage Resources (2005).
\13\U.S. Gov't Accountability Office, Food Safety: FDA'S Imported
Seafood Safety Program Shows Some Progress, But Further Improvements
Are Needed 29 (2004).
\14\Id.
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In January 2007, GAO added the Federal oversight of food
safety to its list of high-risk areas needing broad-based
transformation, largely because of continued ineffective
coordination and inefficient use of resources.\15\ As a part of
that 2007 update to its high-risk list, GAO reiterated its
recommendation that FDA consider using SIP personnel to augment
FDA's inspection capacity.\16\ In February 2009, GAO reported
that FDA and NMFS still had not begun to work together and
recommended that the agencies collaborate in order to enhance
their use of inspection resources and Federal oversight of
seafood.\17\ The 2009 report included the following passage,
which is instructive in understanding the nature, scope, and
impacts of this ongoing deficiency:
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\15\U.S. Gov't Accountability Office, High-Risk Series: An Update
(2007).
\16\Id. 29.
\17\U.S. Gov't Accountability Office, Seafood Fraud: FDA Program
Changes and Better Collaboration Among Key Federal Agencies Could
Improve Detection and Prevention (2009).
Not only does the lack of collaboration create
inefficient information sharing between the key federal
agencies, it also creates overlapping agency efforts
and inefficient use of government resources. NMFS and
FDA have similar inspection programs--NMFS inspects
facilities, on request, for health, safety, and
economic integrity issues, while FDA focuses its
inspections on health and safety concerns. However, an
FDA official said that the agency is not sure whether
it can rely on NMFS inspections, in part due to
concerns about potential conflicts of interest because
NMFS is paid by industry to conduct its inspections.
FDA has identified these potential conflicts as an
impediment to fully using NMFS inspection efforts in
the past. In our 2004 report on FDA's imported seafood
safety program, we stated that an official raised
concerns about potential conflicts of interest with
NMFS inspections, but that other officials thought that
these concerns could be addressed in an agreement
between the two agencies. We recommended that FDA and
NMFS develop a MOU that, in part, would use and
leverage NMFS inspection services to more efficiently
and effectively monitor the safety of imported seafood.
In response, FDA stated that there were already three
MOUs between FDA and NMFS that dealt with seafood
safety and inspection operations, but that it would
explore additional opportunities to better leverage
NMFS inspection resources and more efficiently and
effectively protect the public health. Among the three
MOUs, the 1974 MOU between FDA and NMFS stated, in
part, that NMFS would provide FDA with information on
establishments under contract with it, and that such
inspections and consultations with FDA should diminish
the need for FDA inspections. Despite FDA's statements
and the provisions in its 1974 MOU, FDA still does not
take into account whether NMFS has already inspected a
facility when FDA determines which facilities it will
inspect. For example, from 2005 through 2008, NMFS
inspected one facility we visited at least four times a
year, yet FDA also inspected it in 2005, 2006, and
2008. Furthermore, neither agency found any significant
issues during their inspections of this facility.
Overall, in fiscal year 2007, FDA inspected 120
facilities that were also inspected by NMFS, while FDA
had not inspected 1,464 other facilities since before
fiscal year 2003. Also during fiscal year 2007, NMFS
inspected 88 facilities that FDA either had not
inspected within the same fiscal year or had not
inspected at all. In its technical comments to our
draft report, FDA stated that it is currently
negotiating an MOU with NMFS that is intended to
address its concerns about potential conflicts of
interest.\18\
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\18\Id. 28-29.
On October 26, 2009, NOAA and FDA did, in fact, enter into a
revised MOU, the stated purpose of which is, ``Cooperation and
information sharing in the inspection of fish and fishery
products and establishments.''\19\ The revised MOU reflects a
mutual agreement that ``[e]ach agency will take advantage of
the inspectional capabilities of the other to achieve the
maximum utilization of resources, when appropriate and as
resources permit.''\20\ In support of this mutual commitment,
the revised MOU also states that NMFS will ``[p]rovide
information to FDA concerning specific establishments or
products that have been inspected by NMFS relevant to
compliance with FDA requirements, when requested by FDA,'' and
will ``[p]erform sample analysis and/or conduct inspections of
fish and fishery product processors, as appropriate, on FDA's
request and upon mutual agreement.''\21\
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\19\Memorandum of Understanding between U.S. Department of Commerce
National Oceanic and Atmospheric Admin. and U.S. Department of Health
and Human Services Food and Drug Admin., 74 Fed. Reg. 58027 (Nov. 10,
2009).
\20\Id. 58032.
\21\Id. 58030.
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In another development intended to improve seafood safety, on
January 4, 2011, the President signed into law the FDA Food
Safety Modernization Act (FSMA).\22\ FSMA was intended as a
comprehensive modernization of FDA in order to enhance food
safety, and included two provisions specific to seafood safety
and oversight. First, it amended the Federal Food, Drug, and
Cosmetic Act\23\ (FFDCA) to provide permissive authority for
the Secretary of Health and Human Services (HHS), the Secretary
of Commerce, the Secretary of Homeland Security, the Chairman
of the FTC, and the heads of other appropriate agencies to
enter into such agreements as may be necessary or appropriate
to improve seafood safety.\24\ Second, it provided permissive
authority for the Secretary of Commerce, in coordination with
the Secretary of HHS, to send one or more inspectors to a
country or facility of an exporter from which seafood is
imported into the United States to assess practices and
processes used in connection with the farming, cultivating,
harvesting, preparation, and transportation of seafood.\25\ In
addition to these two seafood-specific provisions, FSMA amended
the FFDCA to require the Secretary of HHS to establish a
program for the testing of food by accredited laboratories, and
to establish a publicly available registry of HHS-recognized
accreditation bodies and the laboratories accredited by those
bodies to perform food testing and import sampling.\26\
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\22\FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124
Stat. 3885 (2010).
\23\Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301-399a
(2009).
\24\FDA Food Safety Modernization Act 201(a).
\25\FDA Food Safety Modernization Act 306(b).
\26\FDA Food Safety Modernization Act 202(a).
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Despite the potential of the revised MOU and FSMA to increase
interagency coordination, GAO concluded in April 2011, in yet
another follow-up report to Members of this Committee, that FDA
and NMFS still have made only limited progress in implementing
their revised 2009 MOU, and FDA still has yet to take advantage
of NMFS inspection resources.\27\ Specifically, GAO reported
that FDA has yet to fully meet its responsibility under the
revised MOU to utilize NMFS foreign and domestic inspection
resources in a systematic manner.\28\ By effectively utilizing
NMFS inspection resources to help minimize its own inspection
responsibilities, GAO observed, FDA could inspect other
facilities that have not yet been inspected.\29\ GAO noted that
FSMA ``provides FDA with new authorities that may enable it to
more comprehensively review a foreign county's seafood safety
system and implement the practices that other entities employ
to ensure the safety of imported seafood products.''\30\
However, GAO went on to observe that:
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\27\Gov't Accountability Office, Seafood Safety: FDA Needs to
Improve Oversight of Imported Seafood and Better Leverage Limited
Resources 23 (2011).
\28\Id.
\29\Id.
\30\Id. 27 (emphasis added).
To facilitate consideration and implementation of a
different oversight approach to ensure the safety of
imported seafood, FDA must utilize its current
resources in the most efficient manner. However, FDA is
not efficiently using its resources when it does not
effectively implement the 2009 MOU with NMFS and fully
utilize the resources of NMFS' Seafood Inspection
Program, an agency dedicated specifically and solely to
ensuring the quality and safety of seafood.\31\
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\31\Id. 27-28.
In light of these most recent findings by GAO, it is worth
noting that, although FSMA represents a sweeping and sorely
needed overhaul of the Nation's food safety system, there are
certain things FSMA does not do.
FSMA does not require, but instead merely permits, HHS, the
Department of Commerce, and other appropriate departments and
agencies to enter into interagency agreements in order to
improve seafood safety. It also does not include within the
scope of that permissive authority the ability to: strengthen
cooperation on seafood labeling or seafood fraud; coordinate
the collection and analysis of, or share, information on the
movement of seafood in commerce in order to detect and
investigate violations of Federal law; or engage in outreach to
private testing laboratories, the seafood industry, and the
public to enhance seafood safety and prevent fraud and
mislabeling.
Furthermore, while FSMA includes authority for FDA to
recognize accredited food testing laboratories and to increase
the number of laboratories qualified to perform food testing
generally, FSMA does not seek to take advantage of the
expertise and ability of the SIP (working in consultation with
FDA) to increase the number of laboratories specializing in
seafood testing that are certified to FDA standards, or to
expand testing activities at its National Seafood Inspection
Laboratory. In all likelihood this is because the subject
matter is beyond the scope of modernizing FDA's food safety
authorities.
Finally, FSMA does not (nor was it intended to) include any
significant measures to address the growing problem of
mislabeling and substitution of seafood products in the stream
of commerce, such as through the establishment of a list of
standardized seafood names to facilitate seafood
identification.
Summary of Provisions
S. 50 would, if enacted into law, strengthen and expand
interagency coordination with respect to seafood safety and
inspection and consumer fraud. Importantly, it is intended to
complement the FFDCA as amended by FSMA, not compete with or
undermine it. It would require the Department of Commerce, the
FTC, and other appropriate Federal agencies to strengthen
consumer protection activities for ensuring the safety and
quality of commercially distributed seafood in the United
States. It would address the almost 40 years of poor
coordination and cooperation between agencies charged with
ensuring seafood quality and safety (which according to GAO,
still exists to the present day) by mandating that the
Secretary of Commerce and other Federal agencies execute
memoranda of understanding for, among other things, cooperative
examination and testing of seafood that leverage agencies'
resources, capabilities, and authorities.
S. 50 would take advantage of the seafood testing expertise
of the SIP and its National Seafood Inspection Laboratory by
authorizing the Secretary of Commerce, in consultation with the
Secretary of HHS, to engage in a targeted effort to increase
the number of U.S. and foreign laboratories certified to FDA
standards (similar to the manner in which the SIP already
certifies compliant U.S. and foreign seafood facilities). The
bill also would authorize the Secretary of Commerce to increase
the number and capacity of laboratories operated by the SIP, to
the extent the Secretary determines such increases are
necessary and funding is appropriated to do so.
To further enhance the Nation's ability to protect consumers
from contaminated seafood imports, the bill would prescribe a
strict process for the Secretary of Commerce to follow upon a
determination by the Secretary of HHS that a shipment of
seafood is contaminated upon entry into the United States. It
also would authorize the Secretary of Commerce to increase the
number of inspectors sent abroad to a country or exporter of
seafood products to the United States to ensure the seafood
products are in compliance with Federal law.
Finally, S. 50 would help detect and combat seafood
mislabeling and fraud by requiring the development and
publication, by joint rulemaking proceeding by the Secretary of
Commerce and the Secretary of HHS, of a standardized list of
names for seafood to aid distributors, retailers, and consumers
in identifying seafood products.
Legislative History
S. 50 was introduced by Senator Inouye on January 25, 2011,
and is cosponsored by Senators Snowe, Vitter, and Begich. On
June 8, 2011, the Committee met in open Executive Session and
by voice vote ordered that the bill be reported favorably
without amendment. A previous version of this legislation, S.
2688, was introduced and ordered to be reported favorably in
the 110th Congress.
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:
S. 50--Commercial Seafood Consumer Protection Act
Summary: S. 50 would require the Secretary of Commerce to
coordinate and administer certain activities to enhance the
safety of seafood products sold in the United States. The bill
also would modify existing provisions that authorize the
Secretary of Health and Human Services (HHS) to refuse entry of
seafood imports. Finally, S. 50 would direct the Secretary of
HHS to enter into memoranda of understanding and other
agreements to strengthen interagency cooperation on seafood
safety.
Based on historical information, expert opinion, and
information provided by the affected agencies, CBO estimates
that implementing S. 50 would cost $80 million over the 2012-
2016 period, assuming appropriation of the necessary amounts.
Pay-as-you-go procedures do not apply to this legislation
because it would not affect direct spending or revenues.
S. 50 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated Cost to the Federal Government: The estimated
budgetary impact of S. 50 is shown in the following table. The
costs of this legislation fall within budget functions 300
(natural resources and environment) and 550 (health).
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By fiscal year, in millions of dollars--
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2012 2013 2014 2015 2016 2012-2016
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level.................................... 20 20 15 15 15 85
Estimated Outlays................................................ 15 19 16 15 15 80
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Basis of Estimate: For this estimate, CBO assumes that S.
50 will be enacted near the beginning of fiscal year 2012 and
that the necessary amounts will be appropriated for each year.
Estimated outlays are based on historical spending patterns for
similar programs.
Department of Health and Human Services Activities
S. 50 would modify existing provisions that authorize the
Secretary of HHS to refuse entry of seafood imports. Under
current law, importers are required to prove that all shipments
meet import requirements, and the Food and Drug Administration
(FDA) can refuse entry of shipments that fail to appear to meet
those requirements. This bill would increase the burden of
proof on FDA for such refusals by requiring the agency to prove
that a seafood shipment does not meet the import requirements.
CBO assumes that such a change would require FDA to conduct
additional sampling, testing, and holding of shipments that
otherwise would have been refused entry based on appearance.
S. 50 also would permit FDA to allow import shipments to
enter the country if FDA finds that the shipment or conditions
of manufacturing meet the import requirements. CBO assumes that
provision would result in additional inspections of foreign
facilities to ensure shipments meet the conditions of the
manufacturing requirements.
Based on historical information and expert opinion, CBO
estimates that implementing S. 50 would cost $80 million over
the 2012-2016 period assuming appropriation of the necessary
amounts. While this estimate reflects CBO's best judgment on
the basis of available information, that projected cost is an
expected value of outcomes for future seafood import problems
and is subject to a great deal of uncertainty. The costs of
testing are likely to vary depending on the product, the length
of time to complete testing, and whether or not foreign
manufacturing facilities will need to be inspected.
S. 50 also would direct the Secretary of HHS to enter into
memoranda of understanding and other agreements to strengthen
interagency cooperation on seafood safety. Under current law,
the FDA is already engaging in such interagency activities.
Thus, CBO anticipates that those provisions would have no
significant budgetary impact.
Department of Commerce Activities
S. 50 would require the Secretary of Commerce to coordinate
and administer certain multi-agency activities to enhance the
safety of seafood products. Because the bill contains several
provisions that require the Secretary to carry out activities
that are required under current law, CBO estimates that
implementing those provisions would not affect the federal
budget. The bill also would require the Secretary to prepare
several reports related to the execution of certain multi-
agency agreements and measures taken to enhance consumer
protection and enforcement activities related to seafood
safety. Based on information regarding the cost of producing
similar reports, CBO estimates that the costs of carrying out
those activities would not be significant.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: S. 50 contains
no intergovernmental or private-sector mandates as defined in
UMRA. Because the bill would codify existing policy for
identifying seafood, it would not impose a new enforceability
duty on tribal or private seafood manufacturers.
Estimate prepared by: Federal Costs: Ellen Werble and Jeff
LaFave; Impact on State, Local, and Tribal Governments: Lisa
Ramirez-Branum; Impact on the Private Sector: Mann Randall.
Estimate approved by: Holly Harvey, 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. 50, as reported, would refine and improve current
statutory authorities for an existing NOAA program which
operates on a voluntary, fee-for-service basis. The bill would
have little, if any, regulatory impact.
ECONOMIC IMPACT
S. 50, as reported, would improve seafood safety and, in so
doing, would reduce consumption of contaminated seafood. S. 50
also would reduce fraud, deception, and unfair business
practices that currently impact U.S. businesses and consumers.
The legislation is therefore not expected to have a negative
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. NOAA and FDA paperwork requirements
would likely increase slightly as a result of the enhanced
authorities and rulemaking and reporting requirements provided
in the bill.
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 provide that this Act may be cited as the
``Commercial Seafood Consumer Protection Act.''
Section 2. Commercially marketed seafood consumer protection safety net
This section would require the Secretary of Commerce, in
coordination with the FTC and other appropriate Federal
agencies and consistent with U.S. international obligations, to
strengthen Federal consumer protection activities for ensuring
that commercially distributed seafood meets applicable Federal
food quality and safety requirements. It would require the
Secretary of Commerce and other appropriate Federal agencies to
enter into memoranda of understanding to strengthen interagency
cooperation on seafood safety, seafood labeling, and seafood
fraud. These memoranda would be required to include provisions,
as appropriate, for:
Examination and testing of imported seafood;
Inspection of foreign facilities;
Standardizing data on seafood names,
inspection records, and laboratory testing;
Coordinating and sharing information in
order to detect and investigate violations under
applicable Federal laws;
Developing a process for expediting imports
of seafood into the United States from foreign
countries and exporters that consistently adhere to the
highest standards for ensuring seafood safety;
Coordinating the tracking of shipments of
seafood in the distribution chain within the United
States;
Enhancing labeling requirements and methods
of assuring compliance with such requirements to
clearly identify species and prevent fraudulent
practices;
Commissioning of NOAA officers and employees
to examine seafood on behalf of other agencies;
Sharing of information concerning non-
compliance and new regulation;
Joint training on subjects related to
seafood inspection; and
Outreach to private testing laboratories,
industry, and the public on Federal efforts to enhance
seafood safety and compliance with labeling
requirements.
The Secretary of Commerce, the Chairman of the FTC, and the
heads of other appropriate Federal agencies would be required
to report annually to Congress on specific efforts undertaken
pursuant to these agreements, as well as the budget, personnel,
and any additional authorities needed to improve seafood safety
and labeling and prevent seafood fraud. Separately, the
Secretary of Commerce and the Chairman of the FTC would be
required to submit a joint report to Congress within one year
after the date of enactment of this Act on consumer protection
and enforcement efforts with respect to seafood marketing and
labeling in the United States.
Section 3. Certified laboratories
This section would require the Secretary of Commerce, in
consultation with the Secretary of HHS, to increase the number
of laboratories certified to the standards of 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 authorize the Secretary of Commerce to
increase the number and capacity of NOAA laboratories that are
involved with the NMFS SIP.
Section 5. Contaminated seafood
This section would establish a strict procedure for dealing
with cases where contaminated shipments of seafood are found
entering the United States or there is reliable evidence
suggesting that seafood from a given country is not likely to
meet Federal standards. It would allow the Secretary of HHS to
refuse imported contaminated seafood and to 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 is
laboratory evidence that a shipment meets the requirements of
Federal law. The Committee notes that section 801(a) of the
FFDCA has long provided the Secretary of HHS with the authority
to refuse admission into the United States of food or other
articles if it appears that they are, inter alia, manufactured,
processed, or packed under unsanitary conditions, adulterated,
or misbranded.\32\ Section 5(a) of S. 50 would permit the
Secretary of HHS to refuse admission of shipments of seafood if
the Secretary determines that they do not meet the requirements
of Federal law. It is not the intent of the Committee that a
violation of Federal law be proven or otherwise formally
determined to have occurred in order for the Secretary of HHS
to exercise the authority granted under section 5(a). Rather,
it is the intent of the Committee that section 5(a) be read and
interpreted in conformity with the longstanding appearance
standard established by section 801(a) of the FFDCA. Under
section 5(a), the Secretary of HHS would be authorized to issue
an order refusing admission into the United States of imports
of seafood or seafood products if it appears to the Secretary
that shipments of such seafood or seafood products do not meet
the requirements established under applicable Federal law.
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\32\Federal Food, Drug, and Cosmetic Act 801(a), 21 U.S.C. 381
(2009).
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Section 6. Inspection teams
This section would authorize the Secretary of Commerce, in
cooperation with the Secretary of HHS, to send inspectors
overseas to assess the methods used by seafood exporters to
ensure they are compatible with Federal law and report on their
findings.
Section 7. Seafood identification
This section would direct the Secretary of Commerce and the
Secretary of HHS to initiate a joint rulemaking proceeding to
develop and make public a list of standardized names for
seafood identification purposes at distribution, marketing, and
consumer retail stages.
Section 8. Definitions
This section would define the terms, ``applicable Federal
laws,'' ``appropriate Federal agencies,'' and ``Secretary'' for
purposes of the Act.
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.