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.