Catfish Inspection and S.J.Res. 28

On May 25, 2016, the Senate passed S.J.Res. 28, which would disapprove the U.S. Department of Agriculture's (USDA) rule on catfish inspection. The rule transferred catfish inspection from the Food and Drug Administration (FDA) to USDA's Food Safety and Inspection Service (FSIS). The joint resolution passed 55-43 and is now before the House for consideration. If the House passes the joint resolution, it will be sent to the President for his consideration. If the joint resolution is approved, the responsibility for catfish inspection would return to FDA. Failure to take up the Senate joint resolution in the House will leave catfish inspection under FSIS.

The Senate disapproved the USDA catfish rule using the expedited procedures in the Congressional Review Act (CRA; 5 U.S.C. §801 et seq.). The CRA allows Congress to disapprove certain rules issued by executive agencies and contains fast-track procedures for such action after agencies have submitted the rules to Congress for review. Previously, Congress has overturned one rule under the CRA (see CRS Report IF10023).

Section 11016 of the 2008 farm bill (P.L. 110-246) amended the Federal Meat Inspection Act (21 U.S.C. §601 et seq.) to transfer catfish inspection from FDA to FSIS. The act also authorized the Secretary of Agriculture to determine the definition of catfish. FDA continues to regulate all other fish and seafood.

In February 2011, FSIS released its proposed rule (76 Federal Register 10434) for catfish inspection but did not define catfish. Instead, USDA requested public comment on how catfish should be defined. A narrow definition, for example, would include only catfish of the family Ictaluridae, which includes catfish primarily raised in North America. FSIS estimated that if catfish inspection were limited to Ictaluridae, all domestically produced catfish and about 20-25% of imported catfish would be inspected, covering about 70% of all catfish consumed in the United States. On the other hand, if the broadest definition were used—the order Siluriformes, encompassing 36 families of catfish—then 100% of U.S. catfish consumption would be subject to FSIS inspection.

Section 10806 of the 2002 farm bill (P.L. 107-171) allowed only Ictaluridae to be labeled, advertised, and sold as catfish. Other catfish, such as the family Pangasiidae produced in Asia, must be labeled with other names (such as basa, tra, or swai). Vietnam, other Asian nations, and some observers protested against this provision in the 2002 farm bill, calling it a protectionist measure to assist U.S. catfish producers. Section 12106 of the 2014 farm bill (P.L. 113-79), enacted on February 7, 2014, directed USDA to define catfish as "all fish of the order Siluriformes" and issue a final inspection rule within 60 days of enactment. On December 2, 2015, USDA released the final rule, completing the transfer of inspection authority from FDA to FSIS. FSIS catfish inspection went into effect on March 1, 2016, with an 18-month phase-in period before it is fully implemented on September 1, 2017.

Those who favor FSIS catfish inspection, such as catfish producers/processors and food safety advocates, usually argue that FSIS inspection provides a "more robust" level of food safety than under FDA. Under FSIS and FDA, domestic slaughterers and processors operate under Hazard Analysis, Critical Control Point plans. However, FSIS operates "continuous" inspection, meaning inspectors are in the slaughter facilities during all hours of operation, whereas FDA inspectors are not. For processing-only facilities, FSIS visits every day to ensure that food safety procedures are followed and will do so for domestic catfish processing when inspection is fully implemented.

Under the new catfish inspection regulations, foreign food safety agencies and catfish producers and processors have to demonstrate that their production and processing systems provide "equivalent" or the same level of food safety as the FSIS inspection system. Approved facilities are subject to periodic FSIS audit, and imports from approved foreign facilities are subject to re-inspection upon U.S. entry. FDA also conducts re-inspections of imports, but supporters of FSIS inspection argue that the equivalency process provides a greater level of food safety and that FSIS re-inspects a greater share of imports than does FDA.

Those who oppose FSIS catfish inspection argue that transferring catfish to FSIS is fracturing the food safety inspection system and is duplicative because FDA continues to inspect the bulk of fish and seafood consumed in the United States. They also argue that there is no evidence of increased food safety risk from catfish compared with other fish and that the shift to FSIS is a trade protectionist policy promoted by the domestic catfish industry to slow the growth of imports. The Government Accountability Office weighed in against moving catfish inspection in several reports and has specifically called for Congress to repeal the FSIS catfish provision.

There is also concern among opponents of moving catfish to FSIS that it could lead to a World Trade Organization (WTO) trade dispute. Vietnam, the source of about 90% of U.S. catfish imports, has already communicated its concerns about the new U.S. inspection system to the WTO's Committee on Sanitary and Phytosanitary Measures. This could be a precursor to Vietnam requesting dispute settlement consultations. (See CRS Report R41550 for more information on U.S.-Vietnam economic and trade relations.)

In May 2016, following Senate passage of S.J.Res. 28, 21 Members of Congress sent a letter to House Speaker Ryan and Minority Leader Pelosi requesting that the House not take up the joint resolution. In a June 16, 2016, Dear Colleague letter, "Oppose the Misuse of the Congressional Review Act," Chairman Conaway and Ranking Member Peterson of the House Agriculture Committee and Appropriations Agriculture Subcommittee Chairman Aderholt and Representative DeLauro declared their opposition to S.J.Res. 28. In June 2016, 180 Members of Congress sent a letter in support of S.J.Res. 28 to House leadership requesting a vote on the joint resolution. The letter-writing efforts highlight the difference of opinion about catfish inspection within the House.