82R3897 SJM-D

By: Hegar S.B. No. 751

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of catfish and other siluriform fish intended for human consumption; providing civil and administrative penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 436, Health and Safety Code, is amended by adding Subchapter J to read as follows:

SUBCHAPTER J. LABELING AND MARKETING OF CATFISH AND OTHER

SILURIFORM FISH

Sec. 436.121. DEFINITIONS. In this subchapter:

(1) "Catfish" means a fish that is classified in the taxonomic family Ictaluridae.

(2) "Catfish product" means a food item intended for human consumption that is made wholly or partly from catfish. The term does not include:

(A) a catfish that has been denatured, is inedible, or is designated by the commissioner as unsuitable for human consumption; or

(B) a food item exempted from regulation under this subchapter by the commissioner under Section 436.122.

(3) "Commissioner" means the commissioner of state health services.

(4) "Container" means the physical material in contact with or immediately surrounding catfish, a catfish product, siluriform fish, or a siluriform fish product.

(5) "Department" means the Department of State Health Services.

(6) "Distributor" means a person offering catfish, a catfish product, siluriform fish, or a siluriform fish product for sale to a retailer.

(7) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(8) "Farm-raised catfish" means catfish that has been produced and harvested in freshwater using customary methods of commercial aquaculture. The term includes a fillet, steak, nugget, or any other meat from a catfish described by this subdivision.

(9) "Food service establishment" means a business that sells or otherwise serves individual portions of food, intended for human consumption, directly to the consumer.

(10) "Label" means written, printed, or graphic matter appearing on a container of catfish, a catfish product, siluriform fish, or a siluriform fish product.

(11) "Processor" means a person engaged in handling, sorting, storing, preparing, manufacturing, packing, or holding catfish, a catfish product, siluriform fish, or a siluriform fish product.

(12) "Producer" means a person engaged in harvesting catfish or siluriform fish intended for sale by a retailer.

(13) "Retailer" means a person offering catfish, a catfish product, siluriform fish, or a siluriform fish product for sale to the public. The term includes a food service establishment.

(14) "Siluriform fish" means a fish that is classified in the taxonomic order Siluriformes, including the taxonomic families Siluridae, Clariidae, and Pangasiidae and the fish commonly known as basa, tra, and swai.

(15) "Siluriform fish product" means a food item intended for human consumption that is made wholly or partly from siluriform fish. The term does not include a siluriform fish that has been denatured, is inedible for a human, or is designated by the commissioner as unsuitable for human consumption.

(16) "Wholesaler" means a person who distributes catfish, a catfish product, siluriform fish, or a siluriform fish product for resale either through a retail outlet owned by the wholesaler or another person.

(17) "Wild catfish" means catfish that is harvested in the wild. The term includes a fillet, steak, nugget, or any other meat from a catfish described by this subdivision.

Sec. 436.122. EXEMPTION OF CATFISH PRODUCTS. The commissioner may exempt from regulation under this subchapter a catfish or catfish product that contains catfish only in small portions or that is not typically considered a product of the United States catfish industry.

Sec. 436.123. LABELING REQUIRED. (a) A retailer of catfish, a catfish product, siluriform fish, or a siluriform fish product shall affix a label to the container of the product designating:

(1) the country of origin of the catfish or siluriform fish used to make the product; and

(2) if the product is made from catfish, whether the product is made from farm-raised catfish or wild catfish.

(b) A retailer may designate the United States as the country of origin of catfish or a catfish product only if:

(1) for catfish or a catfish product made from farm-raised catfish, the catfish is hatched, raised, harvested, and processed in the United States; or

(2) for catfish or a catfish product made from wild catfish, the catfish is harvested and processed in the waters of the United States or a territory of the United States.

(c) A distributor or wholesaler of catfish, a catfish product, siluriform fish, or a siluriform fish product at the time of sale to a retailer shall provide the retailer with the information necessary for the retailer to comply with Subsections (a) and (b), including certification of the country of origin of catfish, a catfish product, siluriform fish, or a siluriform fish product from a state or federal agency that regulates the processing or importing of catfish or siluriform fish.

Sec. 436.124. REQUIREMENTS FOR FOOD SERVICE ESTABLISHMENTS. (a) In this section, "menu board" means a posted list or pictorial display of food items offered for sale by a food service establishment.

(b) Except as provided by Subsection (c), a food service establishment shall disclose before the point of purchase the following information for any catfish or catfish product sold by the establishment by printing the information adjacent to the product on the menu or menu board in the same font style and size as the product:

(1) the country of origin of the catfish or catfish product; and

(2) whether the catfish or catfish product is made from farm-raised catfish or wild catfish.

(c) If a food service establishment offers for sale only catfish or catfish products made from catfish originating in the United States, the establishment may disclose the country of origin information generally in one location in the establishment in lieu of menu or menu board disclosure.

Sec. 436.125. CERTAIN MARKETING PROHIBITED. A retailer, distributor, wholesaler, or food service establishment may not use the term "catfish" to label or advertise the sale of a fish that is not included in the definition of catfish under Section 436.121.

Sec. 436.126. RECORDS REQUIRED; AUDIT BY DEPARTMENT. (a) For the purpose of verifying the country of origin of catfish, a catfish product, siluriform fish, or a siluriform fish product, the commissioner may require a retailer, distributor, wholesaler, or food service establishment to maintain records of the country of origin of the catfish, catfish product, siluriform fish, or siluriform fish product that the retailer, distributor, wholesaler, or food service establishment handles.

(b) The department at any time may conduct an audit of the records maintained by a retailer, distributor, wholesaler, or food service establishment under Subsection (a).

Sec. 436.127. INSPECTION. (a) The commissioner, an authorized agent, or a health authority may, on presenting appropriate credentials to the owner, operator, or agent in charge:

(1) enter at reasonable times, including when processing is conducted, an establishment or location in which catfish, a catfish product, siluriform fish, or a siluriform fish product is processed, packed, pasteurized, or held for introduction into commerce or held after introduction into commerce;

(2) enter a vehicle being used to transport or hold the catfish, a catfish product, siluriform fish, or a siluriform fish product in commerce; or

(3) inspect the establishment, location, or vehicle, including equipment, records, files, papers, materials, containers, labels, or other items, and obtain samples necessary for enforcement of this subchapter.

(b) The inspection of an establishment or location is to determine whether the catfish, a catfish product, siluriform fish, or a siluriform fish product:

(1) is adulterated or misbranded;

(2) may not be processed, introduced into commerce, sold, or offered for sale under this subchapter or rules adopted by the executive commissioner; or

(3) is otherwise in violation of this subchapter.

(c) The commissioner, an authorized agent, or a health authority may not inspect:

(1) financial data;

(2) sales data, other than shipment data;

(3) pricing data;

(4) personnel data, other than personnel data relating to the qualifications of technical and professional personnel; or

(5) research data.

Sec. 436.128. VIOLATION; INJUNCTION. (a) The commissioner, an authorized agent, or a health authority may petition the district court for a temporary restraining order to restrain a continuing violation or a threat of a continuing violation of this subchapter if the commissioner, authorized agent, or health authority believes that:

(1) a person has violated, is violating, or is threatening to violate a provision of this subchapter; and

(2) the violation or threatened violation creates an immediate threat to the health and safety of the public.

(b) If the court finds that a person is violating or threatening to violate this subchapter, the court shall grant injunctive relief.

(c) Venue for a suit brought under this section is in the county in which the violation or threat of violation is alleged to have occurred or in Travis County.

Sec. 436.129. CIVIL PENALTY; CIVIL LIABILITY. (a) At the request of the commissioner, the attorney general or a district, county, or municipal attorney shall institute an action in district or county court to collect a civil penalty from a person who has violated this subchapter.

(b) A person who violates this subchapter is liable for a civil penalty not to exceed $25,000 a day for each violation. Each day of a continuing violation constitutes a separate violation for purposes of penalty assessment.

(c) A retailer of, wholesaler of, or food service establishment that serves catfish, a catfish product, siluriform fish, or a siluriform fish product is liable for damages arising from a civil suit initiated under this subchapter for failure to comply with Section 436.123 or 436.124. A producer, processor, or distributor may not be held liable for damages arising from a civil suit initiated as the result of a failure to disclose the country of origin of catfish or siluriform fish.

(d) In determining the amount of the penalty, the court shall consider:

(1) the person's history of previous violations under this chapter;

(2) the seriousness of the violation;

(3) any hazard to the health and safety of the public;

(4) the demonstrated good faith of the person; and

(5) other matters as justice may require.

(e) A civil penalty recovered in a suit instituted by the attorney general under this subchapter shall be deposited in the state treasury to the credit of the general revenue fund. A civil penalty recovered in a suit instituted by a local government under this subchapter shall be paid to the local government.

(f) Venue for a suit to collect a civil penalty brought under this section is in the municipality or county in which the violation occurred or in Travis County.

Sec. 436.130. WRITTEN NOTIFICATION OF VIOLATION; ADMINISTRATIVE PENALTY. (a) If the commissioner finds that a person has violated this subchapter, the commissioner shall notify the person in writing. If the person corrects the violation by the third day after the date the person receives the written notification, the commissioner may not assess administrative penalties against the person under this subchapter.

(b) In addition to a penalty imposed by Subchapter C, the commissioner may assess an administrative penalty against a person who violates this subchapter and fails to correct the violation under Subsection (a) in the amount of:

(1) not more than $1,000 for the person's first violation;

(2) not more than $2,000 for the person's second violation; and

(3) not more than $5,000 for the person's third or subsequent violation.

Sec. 436.131. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE. (a) The commissioner may assess an administrative penalty only after a person charged with a violation is given an opportunity for a hearing.

(b) If a hearing is held, the commissioner shall make findings of fact and shall issue a written decision regarding the violation and the amount of the penalty.

(c) If the person charged with the violation does not request a hearing, the commissioner may assess a penalty after determining that a violation has occurred and the amount of the penalty.

(d) The commissioner shall issue an order requiring a person to pay a penalty assessed under this section.

(e) The commissioner may consolidate a hearing held under this section with another proceeding.

Sec. 436.132. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not later than the 30th day after the date an order is issued under Section 436.131(d), the commissioner shall notify the person against whom the penalty is assessed of the order and the amount of the penalty.

(b) Not later than the 30th day after the date notice of the order is given to the person, the person shall:

(1) pay the penalty in full; or

(2) seek judicial review of the amount of the penalty, the findings of the commissioner, or both.

(c) If the person seeks judicial review, the person shall:

(1) send the amount of the penalty to the commissioner for placement in an escrow account; or

(2) post with the commissioner a bond for the amount of the penalty.

(d) A bond posted under this section must be in a form approved by the commissioner and must be effective until judicial review of the order or decision is final.

(e) A person who does not send the money to the commissioner or post the bond within the period described by Subsection (b) waives all rights to contest the violation or the amount of the penalty.

(f) The attorney general, at the request of the commissioner, may bring a civil action to recover an administrative penalty assessed under this subchapter.

Sec. 436.133. REFUND OF ADMINISTRATIVE PENALTY. Not later than the 30th day after the date of a judicial determination that an administrative penalty against a person should be reduced or not assessed, the commissioner shall:

(1) remit to the person the appropriate amount of any penalty payment plus accrued interest; or

(2) execute a release of the bond if the person has posted a bond.

Sec. 436.134. PUBLIC DISCLOSURE. The department may disclose to the public a list of retailers and food service establishments in this state that purchase catfish, a catfish product, siluriform fish, or a siluriform fish product from a wholesaler, distributor, or processor, including:

(1) the countries of origin of catfish, a catfish product, siluriform fish, or a siluriform fish product sold by the listed retailers and food service establishments; and

(2) any violation of this subchapter committed by a listed retailer or food service establishment.

Sec. 436.135. RULES. The executive commissioner may adopt rules as necessary to administer and enforce this subchapter.

SECTION 2. This Act takes effect September 1, 2011.