Recently, Congress made a new move to nullify the USDA rule published in December 2015 to establish a catfish inspection program under USDA’s Food Safety and Inspection Service (FSIS). On May 25, 2016, the Senate passed a joint resolution to disapprove USDA’s mandatory inspection over siluriformes fish, including catfish. There are at least two more hurdles before USDA loses its inspection program: the House still needs to pass the resolution and the President needs to sign it. If the President vetoes the resolution, then the Senate and House will have to pass it by a two-thirds majority to overcome the veto.
Low probability that rule will be nullified
The resolution process to nullify an administrative rule is from the Congressional Review Act’s authority. Since its enactment in 1996, the Congressional Review Act has only overturned one rule. In 2001, the Bush administration overturned the Clinton’s administration’s Occupational Safety and Health Administration’s rule about employee ergonomics. The most-cited reason for the rare use of the Congressional Review Act is in anticipation that the President will veto a rule published by one’s own administration.
Therefore, it is just the beginning of the road to nullify USDA’s regulation. In addition to the unpredictability of whether the House will pass the regulation and the President will sign it, the circumstances are complicated by the presidential election this year, which adds increased uncertainty.
FSIS still has the Authority for Inspection
Until the resolution is passed by the House and signed by the President, USDA’s final rule is still in effect. The government actions under USDA’s final rule authority are still in effect.
Currently, FSIS has the authority to inspect incoming catfish shipments, after FDA transferred jurisdiction over siluriformes fish to USDA in the beginning of May.
At the entry port, FSIS personnel reinspect selected shipments on at least a quarterly basis. FSIS may conduct several types of inspections:
- Examine for chemical residues (such as pesticide, nitrofuran) and Salmonella
- Examine for filth, mold, etc.
- Verify that the labels contain required statements (e.g. country of origin, name and address of the foreign establishment, distributor or importer, special handling statement, etc.)
If USDA found out that a firm has a problem, USDA may require that future shipments be tested by a third-party lab before the product will be released. The firm will be required to continue testing all import shipments until it establishes sufficient documents and evidence to prove consistent compliance.
If USDA’s rule is successfully nullified, then USDA’s inspection program would never have gone into full effect, which means that USDA’s program development efforts would have been in vain. Count on FDAImports.com to keep importers and foreign producers of seafood (particularly catfish, swai and basa) informed as this political battle progresses.
Vietnam
Interestingly, the Senate’s passing of the resolution happened during the President’s visit to Vietnam in May. Two recent Vietnamese shipments’ refusals were also in the discussion on the Senate floor. The Senate record on May 23 identifies that USDA found two shipments from Vietnam adulterated with malachite green, enrofloxacin, and fluoroquinolone, cited as a reason to not pass the resolution.
Vietnam is a key party in the catfish importing industry in the United States and is publicly applauding the Senate’s recent move. Previously, Vietnam claimed it was considering a WTO suit over USDA’s catfish inspection program. In our opinion, Vietnam will observe Congress’ move before taking any further actions.
