FSIS Finally Nets “Catfish”

December 10, 2015

By Riëtte van Laack

Although it has taken some time, the Food Safety and Inspection Service (FSIS) of the USDA published a final rule establishing a mandatory inspection program for “catfish (“fish of the order Siluriformes and products derived from these fish.”) This rule implements provisions of the 2008 and 2014 Farm Bills, which amended the Federal Meat Inspection Act (FMIA) to define “catfish” as an “amenable species” making is subject to mandatory continuous inspection by FSIS.

For those who may be confused about how FSIS came to have jurisdiction over “catfish” while FDA retains jurisdiction over other fish, here is a brief history. In 2008, the Farm Bill included a provision amending the FMIA, to give FSIS jurisdiction over “catfish as defined by [FSIS].” In 2011, FSIS issued a proposed rule regarding inspections, but postponed making a decision on defining catfish.

Under the FDC Act, the term “catfish” may only be used for fish classified within the family Ictaluridae (a provision added by the 2002 Farm Bill). However, if FSIS were to use that definition, the rule would not apply to certain fish imported from Vietnam, which, although not “catfish” as defined by the FDC Act, apparently are often marketed as such. Three years later, the Farm Bill of 2014 resolved any uncertainty and amended the FMIA to replace “catfish as defined by [FSIS]” with all “fish of the order Siluriformes.” On Thanksgiving eve, FSIS announced the final rule.

Fish of the order Siluriformes from families other than Ictaluridae, which are subject to this rule, must be labeled with an appropriate common or usual name other than catfish (which remains reserved for fish from the family Ictaluridae). However, for purposes of this blog post, we use the term “catfish” for all fish of the order Siluriformes.

Once the final rule takes effect, domestic and imported “catfish” will be subject to FSIS jurisdiction. As a result, “catfish” slaughter will be subject to continuous inspection. Labels for “catfish” and “catfish” products will be subject to FSIS pre-market approval and FSIS labeling requirements (which are similar but not identical to FDA requirements). Ingredients used in “catfish” products must not only be safe, but they also must be “suitable.” Notably, ingredients may not be used unless authorized by FSIS regulations or included in the agency’s list of safe and suitable ingredients. Furthermore, only “catfish” from countries that FSIS has determined have an inspection system equivalent to the U.S. system may be exported to the United States. Moreover, all imported “catfish” will be subject to reinspection by FSIS.

The effective date of the final rule is March 1, 2016. From that date forward, all “catfish” will be subject to FSIS jurisdiction. However, the date of full enforcement is September 1, 2017. During the 18-month “transition” time, FSIS will provide guidance to the industry, start continuous inspection at “catfish” slaughter establishments and inspect “catfish” processing facilities at least once every quarter. Also, countries that wish to continue exporting “catfish” to the United States must submit their application for an equivalency determination during this 18-month period. Provided the application has been submitted, a country may continue to export fish products to the United States until FSIS determines that the exporting country’s inspection system is not equivalent to the U.S. system.

The legislative amendments transferring jurisdiction of “catfish” products to FSIS purportedly were intended to ensure their safety. However, the Government Accountability Office has repeatedly stated that the transfer of jurisdiction over catfish to FSIS and the creation of a catfish inspections office in the USDA is one of the government’s most wasteful and duplicative programs, and recommended against it.  Also, opponents of assigning “catfish” to FSIS have asserted that this action is essentially a trade barrier, and appear prepared to challenge it before the WTO. Thus, the government could find itself having to defend the action on public health grounds, while presumably continuing to stand behind the adequacy of FDA’s seafood program as it applies to fish other than “catfish.” Stay tuned for further developments.