II

103D CONGRESS

1ST SESSION S. 1349

To establish the Food Safety and Inspection Agency, and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 3 (legislative day, JUNE 30), 1993

Mr. DURENBERGER introduced the following bill; which was read twice and

referred to the Committee on Governmental Affairs

A BILL

To establish the Food Safety and Inspection Agency, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Food Safety and Inspection Agency Act of 1993’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

TITLE I—FOOD SAFETY AND INSPECTION AGENCY

Sec. 101. Establishment.

Sec. 102. Assistant Directors.

Sec. 103. Deputy Assistant Directors.
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Sec. 104. Office of the General Counsel.

Sec. 105. Office of the Inspector General.

Sec. 106. Bureau of Food Safety and Inspection Statistics.

Sec. 107. Study of data needs.

Sec. 108. Educational programs.

Sec. 109. Employment restrictions.

Sec. 110. Administrative provisions.

Sec. 111. Inherently governmental functions.

Sec. 112. Conforming amendments.

TITLE II—TRANSFER OF FOOD SAFETY AND INSPECTION

FUNCTIONS

Sec. 201. Transfer and administration of functions.

Sec. 202. Determinations of certain functions.

Sec. 203. Personnel provisions.

Sec. 204. Delegation and assignment.

Sec. 205. Reorganization.

Sec. 206. Rules.

Sec. 207. Transfer and allocations of appropriations and personnel.

Sec. 208. Incidental transfers.

Sec. 209. Effect on personnel.

Sec. 210. Savings provisions.

Sec. 211. Separability.

Sec. 212. Transition.

Sec. 213. References.

Sec. 214. Additional conforming amendments.

TITLE III—COMMISSION ON FOOD SAFETY AND INSPECTION

Sec. 301. Establishment.

Sec. 302. Membership.

Sec. 303. Uniform food safety and inspection system.

Sec. 304. Powers of the Commission.

Sec. 305. Administrative matters.

TITLE IV—GENERAL PROVISIONS

Sec. 401. Reports.

Sec. 402. Authorization of appropriations.

Sec. 403. Effective date.

1 SEC. 2. FINDINGS AND PURPOSES.

2 (a) FINDINGS.—Congress finds that—

3 (1) the Secretary of Agriculture, the Secretary

4 of Health and Human Services, and the Secretary of

5 Commerce regulate food safety and conduct food

6 safety inspections pursuant to different laws and

7 using different regulatory approaches;
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1 (2) different laws and regulatory approaches,

2 fragmented responsibilities, and separate appropria3 tions have resulted in inconsistent inspections, dif4 ferent enforcement authorities, and duplicative and

5 overlapping efforts; and

6 (3) the creation of a single agency to conduct

7 food safety inspections should—

8 (A) increase efficiency by eliminating over9 lapping and duplicative efforts;

10 (B) eliminate illogical and inconsistent

11 treatment of food products that pose similar

12 risks;

13 (C) avoid problems historically associated

14 with interagency agreements;

15 (D) consolidate Federal food safety appro16 priations, thus allowing the agency to target

17 food safety resources where the resources are

18 most needed; and

19 (E) reduce administrative costs by elimi20 nating redundant overhead and by realizing

21 economies of scale.

22 (b) PURPOSES.—It is the purpose of this Act to—

23 (1) establish a single agency, the Food Safety

24 and Inspection Agency, to regulate food safety and

25 to conduct food safety inspections; and
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1 (2) transfer food safety and inspection func2 tions to the Agency.

3 SEC. 3. DEFINITIONS.

4 As used in this Act (unless the context clearly re5 quires otherwise):

6 (1) AGENCY.—The term ‘‘Agency’’ means the

7 Food Safety and Inspection Agency established in

8 section 101(a).

9 (2) DIRECTOR.—The term ‘‘Director’’ means

10 the Director of the Agency appointed under section

11 101(b).

12 (3) FEDERAL AGENCY.—The term ‘‘Federal

13 agency’’ has the meaning given to the term ‘‘agen14 cy’’ by section 551(1) of title 5, United States Code.

15 (4) FUNCTION.—The term ‘‘function’’ means

16 any duty, obligation, power, authority, responsibility,

17 right, privilege, activity, or program.

18 (5) OFFICE.—The term ‘‘office’’ includes any

19 office, administration, agency, institute, unit, organi20 zational entity, or component thereof.
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1 TITLE I—FOOD SAFETY AND

2 INSPECTION AGENCY

3 SEC. 101. ESTABLISHMENT.

4 (a) IN GENERAL.—The Food Safety and Inspection

5 Agency is established as an independent establishment (as

6 defined in section 104 of title 5, United States Code).

7 (b) DIRECTOR.—

8 (1) IN GENERAL.—There shall be at the head

9 of the Agency a Director of Food Safety and Inspec10 tion who shall be appointed by the President, by and

11 with the advice and consent of the Senate. The

12 Agency shall be administered under the supervision

13 and direction of the Director.

14 (2) DELEGATION OF SUPERVISORY AUTHOR15 ITY.—The Director may not assign duties for or del16 egate authority for the supervision of the Assistant

17 Directors, the General Counsel, the Associate Direc18 tor of Food Safety and Inspection Statistics, or the

19 Inspector General of the Agency to any officer of the

20 Agency other than the Deputy Director.

21 (3) DELEGATION OF OTHER FUNCTIONS.—Ex22 cept as described under paragraph (2) and section

23 102(b)(2) and notwithstanding any other provision

24 of law, the Director may delegate any functions in25 cluding the making of regulations to such officers
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1 and employees of the Agency as the Director may

2 designate, and may authorize such successive

3 redelegations of the functions within the Agency as

4 determined to be necessary or appropriate.

5 (c) DEPUTY DIRECTOR.—

6 (1) IN GENERAL.—There shall be in the Agency

7 a Deputy Director of Food Safety and Inspection,

8 who shall be appointed by the President, by and

9 with the advice and consent of the Senate.

10 (2) DUTIES.—The Deputy Director shall per11 form such responsibilities as the Director shall pre12 scribe and shall act as the Director during the ab13 sence or disability of the Director or in the event of

14 a vacancy in the position of Director.

15 (d) OFFICE OF THE DIRECTOR.—The Office of the

16 Director shall consist of a Director and a Deputy Director

17 and may include an Executive Director and such other ex18 ecutive officers as the Director may determine to be nec19 essary.

20 (e) REGIONAL OFFICES.—The Director is authorized

21 to establish, alter, discontinue, or maintain such regional

22 or other field offices as the Director may determine to be

23 necessary to carry out the functions vested in the Director

24 or other officials of the Agency.
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1 (f) INTERNATIONAL RESPONSIBILITIES OF THE DI2 RECTOR.—

3 (1) IN GENERAL.—In addition to exercising

4 other international responsibilities under other provi5 sions of law, the Director is—

6 (A) encouraged to assist the Secretary of

7 State in carrying out the primary responsibil8 ities of the Secretary of State for coordinating,

9 negotiating, implementing and participating in

10 international agreements, including participat11 ing in international organizations, relevant to

12 food safety and inspection; and

13 (B) authorized and encouraged to—

14 (i) conduct research on and apply ex15 isting research capabilities to the nature

16 and impacts of international food safety

17 and inspection problems and develop re18 sponses to the problems; and

19 (ii) provide technical and other assist20 ance to foreign countries and international

21 bodies to improve food safety and inspec22 tion.

23 (2) CONSULTATION.—The Secretary of State

24 shall consult with the Director and such other per25 sons as the Secretary of State determines to be ap-
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1 propriate on matters referred to in paragraph

2 (1)(A).

3 (g) AUTHORITY OF THE DIRECTOR WITHIN THE

4 AGENCY.—Except as otherwise provided in this Act, noth5 ing in this Act—

6 (1) authorizes the Director to require any ac7 tion by any officer of any executive department or

8 agency other than an officer or employee of the

9 Agency, except that this paragraph shall not affect

10 any authority provided for by any other provision of

11 law authorizing the Director to require any such ac12 tion;

13 (2) modifies any Federal law that is adminis14 tered by any executive department or agency; or

15 (3) transfers to the Agency any authority exer16 cised by any other Federal executive department or

17 agency prior to the effective date of this Act, except

18 the food safety and inspection authority exercised by

19 the Secretary of Agriculture, Secretary of Health

20 and Human Services, and the Secretary of Com21 merce.

22 (h) APPLICATION TO AGENCY ACTIVITIES.—This Act

23 applies only to activities of the Agency, except as otherwise

24 expressly provided in this Act.
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1 SEC. 102. ASSISTANT DIRECTORS.

2 (a) ESTABLISHMENT OF POSITIONS.—There shall be

3 in the Agency such number of Assistant Directors, not to

4 exceed 8, as the Director shall determine, each of whom

5 shall be appointed by the President, by and with the advice

6 and consent of the Senate.

7 (b) DUTIES.—

8 (1) IN GENERAL.—The Director shall assign to

9 Assistant Directors such duties as the Director con10 siders appropriate, including—

11 (A) food safety;

12 (B) food inspections;

13 (C) enforcement;

14 (D) compliance monitoring;

15 (E) research and development;

16 (F) international affairs;

17 (G) policy, planning, and evaluation;

18 (H) congressional affairs;

19 (I) intergovernmental affairs;

20 (J) public affairs; and

21 (K) administration and resources manage22 ment, information resources management, pro23 curement and assistance management, and per24 sonnel and labor relations.

25 (c) DESIGNATION OF RESPONSIBILITIES PRIOR TO

26 CONFIRMATION.—Whenever the President submits the
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1 name of an individual to the Senate for confirmation as

2 Assistant Director under this section, the President shall

3 state the particular duties of the Agency the individual

4 shall exercise on taking office.

5 (d) CHIEF INFORMATION RESOURCES OFFICER.—

6 (1) IN GENERAL.—The Director shall designate

7 the Assistant Director whose responsibilities include

8 information resource management functions as re9 quired by section 3506 of title 44, United States

10 Code, as the Chief Information Resources Officer of

11 the Agency.

12 (2) DUTIES.—The Chief Information Resources

13 Officer shall—

14 (A) advise the Director on information re15 source management activities of the Agency as

16 required by section 3506 of title 44, United

17 States Code;

18 (B) develop and maintain an information

19 resources management system for the Agency

20 that provides for—

21 (i) the conduct of and accountability

22 for any acquisitions made pursuant to a

23 delegation of authority under section 111

24 of the Federal Property and Administra25 tive Services Act of 1949 (40 U.S.C. 759);
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1 (ii) the implementation of all applica2 ble government-wide and Agency informa3 tion policies, principles, standards, and

4 guidelines with respect to information col5 lection, paperwork reduction, privacy and

6 security of records, sharing and dissemina7 tion of information, acquisition and use of

8 information technology, and other informa9 tion resource management functions;

10 (iii) the periodic evaluation of and, as

11 needed, the planning and implementation

12 of improvements in the accuracy, complete13 ness, and reliability of data and records

14 contained within Agency information sys15 tems; and

16 (iv) the development and annual revi17 sion of a 5-year plan for meeting the infor18 mation technology needs of the Agency;

19 and

20 (C) report to the Director as required

21 under section 3506 of title 44, United States

22 Code.
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1 SEC. 103. DEPUTY ASSISTANT DIRECTORS.

2 (a) ESTABLISHMENT OF POSITIONS.—There shall be

3 in the Agency such number of Deputy Assistant Directors

4 as the Director may determine.

5 (b) APPOINTMENTS.—Each Deputy Assistant Direc6 tor—

7 (1) shall be appointed by the Director; and

8 (2) shall perform such functions as the Director

9 shall prescribe.

10 (c) DUTIES.—Duties assigned to an Assistant Direc11 tor under section 102(b) may be performed by one or more

12 Deputy Assistant Directors appointed to assist the Assist13 ant Director.

14 SEC. 104. OFFICE OF THE GENERAL COUNSEL.

15 (a) IN GENERAL.—There shall be in the Agency the

16 Office of the General Counsel.

17 (b) GENERAL COUNSEL.—

18 (1) IN GENERAL.—There shall be at the head

19 of the office a General Counsel who shall be ap20 pointed by the President, by and with the advice and

21 consent of the Senate.

22 (2) DUTIES.—The General Counsel shall be the

23 chief legal officer of the Agency and shall provide

24 legal assistance to the Director concerning the pro25 grams and policies of the Agency.
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1 SEC. 105. OFFICE OF THE INSPECTOR GENERAL.

2 (a) IN GENERAL.—There shall be in the Agency the

3 Office of the Inspector General.

4 (b) INSPECTOR GENERAL.—

5 (1) IN GENERAL.—There shall be at the head

6 of the office an Inspector General who shall be ap7 pointed by the President, by and with the advice and

8 consent of the Senate.

9 (2) DUTIES.—The Inspector General shall carry

10 out such duties and responsibilities, and may exer11 cises such authorities, with respect to the Agency as

12 are provided in the Inspector General Act of 1978

13 (5 U.S.C. App. 3).

14 SEC. 106. BUREAU OF FOOD SAFETY AND INSPECTION STA15 TISTICS.

16 (a) ESTABLISHMENT.—

17 (1) IN GENERAL.—There is established within

18 the Agency a Bureau of Food Safety and Inspection

19 Statistics.

20 (2) DUTIES.—The Bureau shall be responsible

21 for—

22 (A) compiling, analyzing, and publishing a

23 comprehensive set of food safety and inspection

24 statistics that permit timely summary in the

25 form of industrywide aggregates, multiyear
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1 averages, or totals or some similar form and in2 clude information on—

3 (i) the nature, source, and quantity of

4 contaminants in food; and

5 (ii) the effects on the public of the

6 contaminants;

7 (B) promulgating guidelines for the collec8 tion of information by the Agency required for

9 the statistics under this paragraph to ensure

10 that the information is accurate, reliable, rel11 evant, and in a form that permits systematic

12 analysis;

13 (C) coordinating the collection of informa14 tion by the Agency for developing the statistics

15 with related information-gathering activities

16 conducted by other Federal agencies;

17 (D) making readily accessible the statistics

18 published under this paragraph; and

19 (E) identifying missing information of the

20 kind described under clauses (i) and (ii) of sub21 paragraph (A), reviewing the information needs

22 at least annually, and making recommendations

23 to the appropriate Agency officials concerning

24 extramural and intramural research programs

25 to provide the information.
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1 (3) OTHER AGENCIES.—Nothing in paragraph

2 (2) shall authorize the Bureau to require the collec3 tion of any data by any other Agency or State or

4 local government. The Bureau shall not duplicate

5 the information collection functions of other Federal

6 agencies.

7 (4) CONFIDENTIALITY.—

8 (A) IN GENERAL.—Information compiled

9 by the Bureau that has been submitted for pur10 poses of statistical reporting requirements of

11 this Act shall not be disclosed publicly in a

12 manner that would reveal the identity of the

13 submitter, including submissions by Federal,

14 State, or local governments, or reveal the iden15 tity of any individual consistent with section

16 552a of title 5, United States Code.

17 (B) AVAILABILITY UNDER OTHER PROVI18 SIONS OF LAW.—This paragraph shall not af19 fect the availability of data provided to the

20 Agency under any other provision of law admin21 istered by the Agency.

22 (C) CONFIDENTIALITY PROVISIONS OF

23 OTHER LAWS.—The confidentiality provisions of

24 other laws authorizing the collection of food
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1 safety and inspection statistics shall apply to

2 this Act.

3 (5) GRANT AND CONTRACT AUTHORITY FOR

4 CERTAIN ACTIVITIES.—The Director may make

5 grants to and enter into contracts with State and

6 local governments, Indian tribes, universities, and

7 other organizations to assist them in meeting the

8 costs of collecting specific data and other short-term

9 activities that are related to the responsibilities and

10 functions under subparagraphs (A) through (D) of

11 paragraph (1).

12 (b) ASSOCIATE DIRECTOR OF FOOD SAFETY AND IN13 SPECTION STATISTICS.—

14 (1) IN GENERAL.—The Bureau shall be under

15 the direction of an Associate Director of Food Safe16 ty and Inspection Statistics (referred to in this sec17 tion as the ‘‘Associate Director’’) who shall be ap18 pointed by the President, by and with the advice and

19 consent of the Senate.

20 (2) TERM.—The term of the Associate Director

21 shall be 4 years.

22 (3) QUALIFICATIONS.—The Associate Director

23 shall be a qualified individual with experience in the

24 compilation and analysis of food safety and inspec25 tion statistics.
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1 (4) REPORTING.—The Associate Director shall

2 report directly to the Director.

3 (c) ANNUAL REPORT.—On July 1, 1995, and each

4 July 1 thereafter, the Associate Director shall submit to

5 the President a Food Safety and Inspection Statistics An6 nual Report (referred to in this subsection as the ‘‘Re7 port’’). The Report shall include—

8 (1) statistics on food safety and inspections;

9 (2) statistics on the effects of changes in food

10 safety;

11 (3) documentation of the method used to obtain

12 and ensure the quality of the statistics presented in

13 the Report;

14 (4) economic information on the current and

15 projected costs and benefits of food safety and in16 spections; and

17 (5) recommendations on improving food safety

18 and inspection statistical information.

19 (d) CONTINUING PERFORMANCE OF THE FUNCTIONS

20 OF THE ASSOCIATE DIRECTOR PENDING CONFIRMA21 TION.—An individual who, on the effective date of this

22 Act, is performing any of the functions required by this

23 section to be performed by the Associate Director may

24 continue to perform the functions until the functions are
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1 assigned to an individual appointed as the Associate Di2 rector under this Act.

3 (e) ADVISORY COUNCIL ON FOOD SAFETY AND IN4 SPECTION STATISTICS.—

5 (1) IN GENERAL.—The Associate Director shall

6 appoint an Advisory Council on Food Safety and In7 spection Statistics, comprised of no more than 6 pri8 vate citizens who have expertise in food safety and

9 inspection statistics and analysis, who are equally

10 representative of agricultural, food processing, and

11 consumer interests, to advise the Associate Director

12 on food safety and inspection statistics and analyses,

13 including whether the statistics and analyses dis14 seminated by the Bureau are of high quality and are

15 based on the best available objective information.

16 (2) FEDERAL ADVISORY COMMITTEE ACT.—The

17 Council shall be subject to the provisions of the Fed18 eral Advisory Committee Act (5 U.S.C. App. 2).

19 (f) EDUCATIONAL PROGRAMS.—

20 (1) ESTABLISHMENT.—The Director shall, in

21 cooperation with State health agencies, establish

22 public education programs.

23 (2) CONTENT.—The public education programs

24 shall disseminate information to the public, through
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1 the State health agencies, about food safety, includ2 ing—

3 (A) food-borne diseases;

4 (B) safe selection of food; and

5 (C) safe preparation of food.

6 SEC. 107. STUDY OF DATA NEEDS.

7 (a) AGREEMENT.—Not later than 1 year after the

8 start of operations of the Bureau of Food Safety and In9 spection Statistics, the Director, in consultation with the

10 Associate Director of Food Safety and Inspection and the

11 Assistant Director designated as Chief Information Re12 sources Officer, shall enter into an agreement with the Na13 tional Academy of Sciences for a study, evaluation, and

14 report on the adequacy of the data collection procedures

15 and capabilities of the Agency.

16 (b) REPORT.—

17 (1) IN GENERAL.—Not later than 18 months

18 after an agreement is entered into with the National

19 Academy of Sciences, the National Academy of

20 Sciences shall report the findings of the Academy to

21 Congress and the Director.

22 (2) COMPONENTS.—The report shall include an

23 evaluation of the data collection resources, needs,

24 and requirements of the Agency, and shall include

25 an assessment and evaluation of the following sys-
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1 tems, capabilities, and procedures established by the

2 Agency to meet the needs and requirements:

3 (A) Data collection procedures and capa4 bilities.

5 (B) Data analysis procedures and capabili6 ties.

7 (C) The ability of data bases to integrate

8 with one another.

9 (D) Computer hardware and software ca10 pabilities.

11 (E) Management information systems, in12 cluding the ability of management information

13 systems to integrate with another.

14 (F) Agency personnel.

15 (G) The budgetary needs and resources of

16 the Agency for data collection, including an as17 sessment of the adequacy of the budgetary re18 sources provided to the Agency and budgetary

19 resources used by the Agency for data collection

20 needs and purposes.

21 (3) RECOMMENDATIONS.—The report shall in22 clude recommendations for improving the data col23 lection systems, capabilities, procedures, data collec24 tion, analytical hardware and software, and manage25 ment information systems of the Agency.
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1 SEC. 108. EDUCATIONAL PROGRAMS.

2 (a) ESTABLISHMENT.—The Director shall, in co3 operation with State health agencies, establish public edu4 cation programs.

5 (b) CONTENT.—The public education programs shall

6 disseminate information to the public, through the State

7 health agencies, about food safety, including—

8 (1) food-borne diseases;

9 (2) safe selection of food; and

10 (3) safe preparation of food.

11 SEC. 109. EMPLOYMENT RESTRICTIONS.

12 Except as otherwise provided in this Act, political af13 filiation or political qualification may not be taken into

14 account in connection with the appointment of any person

15 to any position in the career civil service or in the assign16 ment or advancement of any career civil servant in the

17 Agency.

18 SEC. 110. ADMINISTRATIVE PROVISIONS.

19 (a) ACCEPTANCE OF MONEY AND PROPERTY.—

20 (1) IN GENERAL.—The Director may accept

21 and retain money, uncompensated services, and

22 other real and personal property or rights (whether

23 by gift, bequest, devise, or otherwise) for the pur24 pose of carrying out the programs and activities of

25 the Agency, except that the Director may not en-
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1 dorse any company, product, organization, or serv2 ice.

3 (2) CREDIT AND DISBURSEMENT.—Gifts, be4 quests, and devises of money and proceeds from

5 sales of other property received as gifts, bequests, or

6 devises shall be credited to a separate fund in the

7 Treasury of the United States and shall be available

8 for disbursement on the order of the Director.

9 (3) CRITERIA.—

10 (A) IN GENERAL.—The Director shall pre11 scribe regulations and guidelines setting forth

12 the criteria the Agency shall use in determining

13 whether to accept a gift, bequest, or devise.

14 (B) FACTORS.—The criteria shall take into

15 account whether the acceptance of the property

16 would reflect unfavorably on the ability of the

17 Agency or an employee to carry out the official

18 duties of the Agency or employee in a fair and

19 objective manner, or would compromise the in20 tegrity of or the appearance of the integrity of

21 a Government program or any official involved

22 in the program.

23 (b) SEAL OF THE AGENCY.—
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1 (1) IN GENERAL.—The Director shall cause a

2 seal for the Agency to be made with such design as

3 the Director shall approve.

4 (2) PENALTIES FOR UNAUTHORIZED USE OF

5 SEAL.—

6 (A) IN GENERAL.—Chapter 33 of title 18,

7 United States Code, is amended by adding at

8 the end the following new section:

9 ‘‘§ 716. Food Safety and Inspection Agency Seal

10 ‘‘(a) Whoever knowingly displays any printed or other

11 likeness of the official seal of the Food Safety and Inspec12 tion Agency, or any facsimile thereof, in, or in connection

13 with, any advertisement, poster, circular, book, pamphlet,

14 or other publication, public meeting, play, motion picture,

15 telecast, or other production, or on any building, monu16 ment, or stationery, for the purpose of conveying, or in

17 a manner reasonably calculated to convey, a false impres18 sion of sponsorship or approval by the Government of the

19 United States or by any department, agency, or instru20 mentality thereof, shall be fined not more than $250 or

21 imprisoned not more than 6 months, or both.

22 ‘‘(b) Whoever, except as authorized under regulations

23 promulgated by the Director of Food Safety and Inspec24 tion and published in the Federal Register, knowingly

25 manufactures, reproduces, sells, or purchases for resale,
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1 either separately or appended to any article manufactured

2 or sold, any likeness of the official seal of the Food Safety

3 and Inspection Agency, or any substantial part thereof,

4 except for manufacture or sale of the article for the official

5 use of the Government of the United States, shall be fined

6 not more than $250 or imprisoned not more than 6

7 months, or both.

8 ‘‘(c) A violation of subsection (a) or (b) may be en9 joined at the suit of the Attorney General of the United

10 States on complaint by any authorized representative of

11 the Director of Food Safety and Inspection.’’.

12 (B) CONFORMING AMENDMENT.—The

13 table of sections for chapter 33 of title 18,

14 United States Code, is amended by adding at

15 the end the following new item:

‘‘716. Food Safety and Inspection Agency Seal.’’.

16 (c) ACQUISITION OF COPYRIGHTS AND PATENTS.—

17 The Director is authorized to acquire any of the following

18 described rights if the property acquired is for use by or

19 for, or useful to, the Agency:

20 (1) Copyrights, patents, and applications for

21 patents, designs, processes, and manufacturing data.

22 (2) Licenses under copyrights, patents, and ap23 plications for patents.

24 (3) Releases, before suit is brought, for past in25 fringement of patents or copyrights.
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1 (d) ADVISORY COMMITTEE COMPENSATION.—The

2 Director is authorized to pay members of advisory commit3 tees and others who perform services as authorized under

4 section 3109 of title 5, United States Code, at rates for

5 individuals not to exceed the per diem rate equivalent to

6 the rate for level V of the Executive Schedule under sec7 tion 5316 of title 5, United States Code.

8 SEC. 111. INHERENTLY GOVERNMENTAL FUNCTIONS.

9 (a) DEFINITIONS.—As used in this section:

10 (1) CONSULTING SERVICES.—The term ‘‘con11 sulting services’’ includes—

12 (A) management and professional support

13 services;

14 (B) studies, analyses, and evaluations;

15 (C) engineering and technical services, ex16 cluding routine engineering services, such as

17 automated data processing and architect and

18 engineering contracts; and

19 (D) research and development.

20 (2) INHERENTLY GOVERNMENTAL FUNCTION.—

21 The term ‘‘inherently governmental function’’ means

22 any activity that is so intimately related to the pub23 lic interest as to mandate performance by a Govern24 ment officer or employee, including an activity that

25 requires the exercise of discretion in applying Gov-
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1 ernment authority or the use of value judgment in

2 making a decision for the Government.

3 (b) GOVERNMENT OFFICERS AND EMPLOYEES.—

4 (1) IN GENERAL.—An inherently governmental

5 function of the Agency shall be performed only by an

6 officer or employee of the United States.

7 (2) CONSTRUCTION.—This subsection is not in8 tended, and may not be construed, to create any

9 right or benefit, substantive or procedural, enforce10 able at law by a party against the United States, the

11 Agency, an officer or employee of the Agency, or any

12 person.

13 (3) REGULATIONS.—The Director shall promul14 gate regulations or internal guidelines to carry out

15 this subsection.

16 (c) CONFLICTS OF INTEREST.—

17 (1) IN GENERAL.—The Director shall by regu18 lation require any person proposing to enter into a

19 contract, grant, or cooperative agreement whether by

20 sealed bid or negotiation, for the conduct of re21 search, development, evaluation activities, or for con22 sulting services, to provide the Director, prior to en23 tering into any such contract, agreement, or ar24 rangement, with all relevant information, as deter25 mined by the Director, bearing on whether the per-
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1 son has a possible conflict of interest with respect

2 to—

3 (A) being able to render impartial, tech4 nically sound, or objective assistance or advice

5 in light of other activities or relationships with

6 other persons; or

7 (B) being given an unfair competitive ad8 vantage.

9 (2) SUBCONTRACTORS.—The person shall en10 sure, in accordance with regulations prescribed by

11 the Director, compliance with this section by sub12 contractors of the person who are engaged to per13 form similar services.

14 (d) AFFIRMATIVE FINDING; CONFLICTS OF INTER15 EST THAT CANNOT BE AVOIDED; MITIGATION OF CON16 FLICTS.—

17 (1) IN GENERAL.—Subject to paragraph (2),

18 the Director may not enter into a contract, agree19 ment, or arrangement described in subsection (c),

20 unless the Director affirmatively finds, after evaluat21 ing all the information and any other relevant infor22 mation otherwise available to the Director, that—

23 (A) there is little or no likelihood that a

24 conflict of interest would exist; or
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1 (B) the conflict has been avoided after ap2 propriate conditions have been included in the

3 contract, agreement, or arrangement.

4 (2) MITIGATING CONDITIONS.—If the Director

5 determines that a conflict of interest exists and that

6 the conflict of interest cannot be avoided by includ7 ing appropriate conditions in the contract, agree8 ment, or arrangement, the Director may enter into

9 the contract, agreement, or arrangement, if the Di10 rector—

11 (A) determines that it is in the best inter12 ests of the United States; and

13 (B) includes appropriate conditions in the

14 contract, agreement, or arrangement to miti15 gate the conflict.

16 (e) PUBLIC NOTICE REGARDING CONFLICTS OF IN17 TEREST.—The Director shall promulgate regulations that

18 require public notice to be given whenever the Director

19 determines that the award of a contract, agreement, or

20 arrangement may result in a conflict of interest that can21 not be avoided by including appropriate conditions in the

22 contract, agreement, or arrangement.

23 (f) DISCLAIMER.—Nothing in this section shall pre24 clude the Agency from promulgating regulations to mon25 itor potential conflicts after a contract award.
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1 (g) CENTRAL FILE.—

2 (1) IN GENERAL.—The Director shall maintain

3 a central file regarding all cases when a public no4 tice is issued.

5 (2) OTHER INFORMATION.—The Director shall

6 also compile other information required under this

7 section.

8 (3) CONFIDENTIALITY.—Access to the informa9 tion described in this subsection shall be controlled

10 to safeguard any proprietary information.

11 (h) REGULATIONS.—No later than 120 days after the

12 effective date of this Act, the Director shall promulgate

13 regulations for the implementation of this section.

14 SEC. 112. CONFORMING AMENDMENTS.

15 (a) COMPENSATION, LEVEL II.—Section 5313 of title

16 5, United States Code, is amended by adding at the end

17 the following:

18 ‘‘Director of Food Safety and Inspection.’’.

19 (b) COMPENSATION, LEVEL III.—Section 5314 of

20 title 5, United States Code, is amended by adding at the

21 end the following:

22 ‘‘Deputy Director of Food Safety and Inspec23 tion.’’.
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1 (c) COMPENSATION, LEVEL IV.—Section 5315 of

2 title 5, United States Code, is amended by adding at the

3 end the following:

4 ‘‘Inspector General, Food Safety and Inspection

5 Agency.

6 ‘‘Assistant Directors, Food Safety and Inspec7 tion Agency (12).

8 ‘‘General Counsel, Food Safety and Inspection

9 Agency.

10 ‘‘Chief Financial Officer, Food Safety and In11 spection Agency.’’.

12 (d) COMPENSATION, LEVEL V.—Section 5316 of title

13 5, United States Code, is amended by adding at the end

14 the following:

15 ‘‘Associate Director of the Bureau of Environ16 mental Statistics, Food Safety and Inspection

17 Agency.’’.

18 (e) INSPECTOR GENERAL ACT.—Section 11 of the

19 Inspector General Act of 1978 (5 U.S.C. App. 3) is

20 amended—

21 (1) in paragraph (1), by inserting before ‘‘; as

22 the case may be’’ the following: ‘‘; the Director of

23 Food Safety and Inspection’’; and

24 (2) in paragraph (2)—
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1 (A) by striking ‘‘Agency or’’ and inserting

2 ‘‘Agency,’’; and

3 (B) by inserting before ‘‘; as the case may

4 be’’ the following: ‘‘, or the Food Safety and In5 spection Agency’’.

6 TITLE II—TRANSFER OF FOOD

7 SAFETY AND INSPECTION

8 FUNCTIONS

9 SEC. 201. TRANSFER AND ADMINISTRATION OF FUNCTIONS.

10 (a) TRANSFER.—There are transferred to the Agency

11 all functions exercised before the effective date of this Act

12 (including all related functions of any officer or employee)

13 of or relating to food safety and inspection carried out

14 by—

15 (1) the Secretary of Agriculture, including food

16 safety and inspection functions carried out under—

17 (A) the Agricultural Marketing Act of

18 1946 (7 U.S.C. 1621 et seq.);

19 (B) the Egg Products Inspection Act (21

20 U.S.C. 1031 et seq.);

21 (C) the Federal Meat Inspection Act (21

22 U.S.C. 601 et seq.);

23 (D) the Poultry Products Inspection Act

24 (21 U.S.C. 451 et seq.); and
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1 (E) the United States Grain Standards

2 Act (7 U.S.C. 71 et seq.).

3 (2) the Secretary of Health and Human Serv4 ices, including food safety and inspection functions

5 carried out under the Federal Food, Drug, and Cos6 metic Act (21 U.S.C. 301 et seq.);

7 (3) the Secretary of Commerce, including food

8 safety and inspection functions relating to seafood

9 and seafood products; and

10 (4) the Secretary of the Interior, including food

11 safety and inspection functions carried out under the

12 Fish and Wildlife Act of 1956 (16 U.S.C. 742a et

13 seq.).

14 (b) ADMINISTRATION.—Notwithstanding any other

15 provision of law, in carrying out the functions transferred

16 by subsection (a), the Director shall, to the maximum ex17 tent practicable—

18 (1) conduct inspections that are based on the

19 health risk inherent in the commodity, the process20 ing operation, and the record of compliance with

21 Federal food safety laws; and

22 (2) take such actions as are necessary for effec23 tive oversight and enforcement of the laws.
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1 SEC. 202. DETERMINATIONS OF CERTAIN FUNCTIONS.

2 If necessary, the Director of the Office of Manage3 ment and Budget shall, after thorough consultation with

4 the appropriate Committees of the House and Senate,

5 make a determination of the functions that are transferred

6 under this title.

7 SEC. 203. PERSONNEL PROVISIONS.

8 (a) APPOINTMENTS.—

9 (1) IN GENERAL.—The Director may appoint

10 and fix the compensation of such officers and em11 ployees (including investigators, attorneys, and ad12 ministrative law judges) as may be necessary to

13 carry out the respective functions transferred under

14 this title.

15 (2) CIVIL SERVICE.—Except as otherwise pro16 vided by law, the officers and employees shall be ap17 pointed in accordance with the civil service laws and

18 the compensation of the officers and employees fixed

19 in accordance with title 5, United States Code.

20 (b) EXPERTS AND CONSULTANTS.—

21 (1) IN GENERAL.—To carry out this title, the

22 Director may obtain the services of experts and con23 sultants in accordance with section 3109 of title 5,

24 United States Code, and compensate the experts and

25 consultants for each day (including travel time) at

26 rates not in excess of the rate of pay for level IV of
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1 the Executive Schedule under section 5315 of such

2 title.

3 (2) TRAVEL EXPENSES.—To carry out this

4 title, the Director may pay experts and consultants

5 who are serving away from their homes or regular

6 places of business travel expenses and a per diem in

7 lieu of subsistence at rates authorized by sections

8 5702 and 5703 of such title for persons in Govern9 ment service employed intermittently.

10 SEC. 204. DELEGATION AND ASSIGNMENT.

11 (a) IN GENERAL.—Unless otherwise expressly pro12 hibited by law or otherwise provided by this Act, the Direc13 tor may delegate any of the functions transferred by this

14 title, and any function transferred or granted after the

15 effective date of this Act, to such officers and employees

16 of the Agency as the Director may designate, and may

17 authorize successive redelegations of the functions as may

18 be necessary or appropriate.

19 (b) CONTINUING RESPONSIBILITY.—No delegation of

20 functions by the Director under this section or under any

21 other provision of this Act is intended to relieve the Direc22 tor of responsibility for the administration of the func23 tions.
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1 SEC. 205. REORGANIZATION.

2 The Director is authorized to allocate or reallocate

3 any function transferred under this title among the offi4 cers of the Agency, and to establish, consolidate, alter, or

5 discontinue such organizational entities in the Agency as

6 may be necessary or appropriate.

7 SEC. 206. RULES.

8 The Director is authorized to prescribe, in accordance

9 with chapters 5 and 6 of title 5, United States Code, such

10 rules and regulations as the Director determines to be nec11 essary or appropriate to administer and manage the func12 tions of the Agency.

13 SEC. 207. TRANSFER AND ALLOCATIONS OF APPROPRIA14 TIONS AND PERSONNEL.

15 (a) IN GENERAL.—Except as otherwise provided in

16 this title, the personnel employed in connection with, and

17 the assets, liabilities, contracts, property, records, and un18 expended balances of appropriations, authorizations, allo19 cations, and other funds employed, used, held, arising

20 from, available to, or to be made available in connection

21 with functions transferred by this title, subject to section

22 1531 of title 31, United States Code, shall be transferred

23 in accordance with this title.

24 (b) USE OF FUNDS.—Unexpended funds transferred

25 pursuant to this section shall be used only for the purposes
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1 for which the funds were originally authorized and appro2 priated.

3 SEC. 208. INCIDENTAL TRANSFERS.

4 (a) IN GENERAL.—The Director of the Office of

5 Management and Budget, at such time as the Director

6 shall provide, is authorized to make such determinations

7 as may be necessary with regard to the functions trans8 ferred by this title, and to make such additional incidental

9 dispositions of personnel, assets, liabilities, grants, con10 tracts, property, records, and unexpended balances of ap11 propriations, authorizations, allocations, and other funds

12 held, used, arising from, available to, or to be made avail13 able in connection with the functions, as may be necessary

14 to carry out this title.

15 (b) TERMINATION OF AFFAIRS.—The Director of the

16 Office of Management and Budget shall provide for the

17 termination of the affairs of all entities terminated by this

18 title and for such further measures and dispositions as

19 may be necessary to effectuate the purposes of this title.

20 SEC. 209. EFFECT ON PERSONNEL.

21 (a) IN GENERAL.—Except as otherwise provided by

22 this title, the transfer pursuant to this title of full-time

23 personnel (except special Government employees) and

24 part-time personnel holding permanent positions is not in25 tended to cause any such employee to be separated or re-
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1 duced in grade or compensation for 1 year after the date

2 of transfer of the employee under this title.

3 (b) EXECUTIVE SCHEDULE POSITIONS.—Except as

4 otherwise provided in this title, any person who, on the

5 day preceding the effective date of this Act, held a position

6 compensated in accordance with the Executive Schedule

7 prescribed in chapter 53 of title 5, United States Code,

8 and who, without a break in service, is appointed in the

9 Agency to a position having duties comparable to the du10 ties performed immediately preceding the appointment

11 shall continue to be compensated in the new position at

12 not less than the rate provided for the previous position,

13 for the duration of the service of the person in the new

14 position.

15 (c) TERMINATION OF CERTAIN POSITIONS.—A posi16 tion with an incumbent who is appointed by the President,

17 by and with the advice and consent of the Senate, the

18 functions of which are transferred by this title, shall termi19 nate on the effective date of this Act.

20 SEC. 210. SAVINGS PROVISIONS.

21 (a) CONTINUING EFFECT OF LEGAL DOCUMENTS.—

22 An order, determination, rule, regulation, permit, agree23 ment, grant, contract, certificate, license, registration,

24 privilege, or other administrative action—
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1 (1) that has been issued, made, granted, or al2 lowed to become effective by the President, any Fed3 eral agency or official of a Federal agency, or by a

4 court of competent jurisdiction, in the performance

5 of functions that are transferred under this title;

6 and

7 (2) that is in effect at the time this Act takes

8 effect, or was final before the effective date of this

9 Act and is to become effective on or after the effec10 tive date of this Act,

11 shall continue in effect according to the terms of the ac12 tion until modified, terminated, superseded, set aside, or

13 revoked in accordance with law by the President, the Di14 rector or other authorized official, a court of competent

15 jurisdiction, or by operation of law.

16 (b) PROCEEDINGS NOT AFFECTED.—

17 (1) IN GENERAL.—This title shall not affect

18 any proceeding (including a notice of proposed rule19 making) or any application for any license, permit,

20 certificate, or financial assistance pending before a

21 transferred office on the effective date of this Act,

22 with respect to functions transferred by this title.

23 The proceeding and application shall be continued.

24 (2) ORDERS.—An order shall be issued in the

25 proceeding, an appeal shall be taken from the order,
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1 and a payment shall be made pursuant to the order,

2 as if this Act had not been enacted. An order issued

3 in the proceeding shall continue in effect until modi4 fied, terminated, superseded, or revoked by a duly

5 authorized official, by a court of competent jurisdic6 tion, or by operation of law.

7 (3) DISCONTINUANCE OR MODIFICATION.—

8 Nothing in this subsection is intended to prohibit the

9 discontinuance or modification of any such proceed10 ing under the same terms and conditions and to the

11 same extent as the proceeding could have been dis12 continued or modified if this Act had not been en13 acted.

14 (c) SUITS NOT AFFECTED.—This Act shall not affect

15 a suit commenced before the effective date of this Act.

16 In the suit, a proceeding shall be had, an appeal taken,

17 and a judgment rendered in the same manner and with

18 the same effect as if this Act had not been enacted.

19 (d) NONABATEMENT OF ACTIONS.—No suit, action,

20 or other proceeding commenced by or against a trans21 ferred office, or by or against any individual in the official

22 capacity of the individual as an officer of a transferred

23 office, shall abate by reason of the enactment of this Act.

24 (e) ADMINISTRATIVE ACTIONS RELATING TO PRO25 MULGATION OF REGULATIONS.—Any administrative ac-
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1 tion relating to the preparation or promulgation of a regu2 lation by a transferred office relating to a function trans3 ferred under this title may be continued by the Agency

4 with the same effect as if this Act had not been enacted.

5 SEC. 211. SEPARABILITY.

6 If a provision of this Act or the application of this

7 Act to any person or circumstance is held invalid, neither

8 the remainder of this Act nor the application of the provi9 sion to other persons or circumstances shall be affected.

10 SEC. 212. TRANSITION.

11 The Director is authorized to utilize—

12 (1) the services of the officers, employees, and

13 other personnel of a transferred office with respect

14 to functions transferred by this title; and

15 (2) funds appropriated to the functions for such

16 period of time as may reasonably be needed to facili17 tate the orderly implementation of this Act.

18 SEC. 213. REFERENCES.

19 Each reference in any other Federal law, Executive

20 order, rule, regulation, or delegation of authority, or any

21 document of or relating to—

22 (1) the head of a transferred office with regard

23 to functions transferred under this title shall be

24 deemed to refer to the Director; and
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1 (2) a transferred office with regard to functions

2 transferred under this title shall be deemed to refer

3 to the Agency.

4 SEC. 214. ADDITIONAL CONFORMING AMENDMENTS.

5 Not later than 180 days after the effective date of

6 this Act, if the Director determines (after consultation

7 with the appropriate committees of Congress and the Di8 rector of the Office of Management and Budget) that ad9 ditional technical and conforming amendments to Federal

10 statutes are necessary to carry out the changes made by

11 this Act, the Director shall prepare and submit to Con12 gress recommended legislation containing the amend13 ments.

14 TITLE III—COMMISSION ON

15 FOOD SAFETY AND INSPECTION

16 SEC. 301. ESTABLISHMENT.

17 There is established a Commission to be known as

18 the Commission on Food Safety and Inspection (referred

19 to in this title as the ‘‘Commission’’).

20 SEC. 302. MEMBERSHIP.

21 (a) COMPOSITION.—

22 (1) GENERAL MEMBERSHIP.—The Commission

23 shall be composed of 15 members appointed by the

24 President, of whom—
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1 (A) 5 shall be representatives of food proc2 essing organizations;

3 (B) 5 shall be representatives of agri4 culture organizations; and

5 (C) 5 shall be representatives of non6 governmental consumer organizations.

7 (2) EX-OFFICIO MEMBERS.—The Secretaries of

8 Agriculture, Commerce, and Health and Human

9 Services shall serve as ex-officio, nonvoting members

10 of the Commission.

11 (3) CHAIRPERSON.—The Director shall serve as

12 the Chairperson of the Commission.

13 (b) PERIOD OF APPOINTMENT; VACANCIES.—Mem14 bers shall be appointed for the life of the Commission. Any

15 vacancy in the Commission shall not affect the powers of

16 the Commission, and shall be filled in the same manner

17 as the original appointment.

18 SEC. 303. UNIFORM FOOD SAFETY AND INSPECTION SYS19 TEM.

20 (a) IN GENERAL.—Not later than 1 year after the

21 date of enactment of this Act, the Commission shall de22 velop and prepare a uniform system of risk-based food

23 safety and inspection.
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1 (b) SUBMISSION TO CONGRESS.—Upon completion of

2 the uniform system, the Commission shall, for the purpose

3 of receiving comments and recommendations——

4 (1) submit copies of the uniform system to the

5 Committees on Agriculture, Nutrition, and Forestry

6 and Labor and Human Resources of the Senate and

7 the Committees on Agriculture and Energy and

8 Commerce of the House of Representatives; and

9 (2) make copies available to the public.

10 (c) PUBLIC COMMENT.—The Commission shall hold

11 a hearing to solicit public comments on the draft uniform

12 system.

13 (d) FINAL DRAFT.—Not later than 180 days after

14 submission of the draft uniform system to the Committees

15 specified in subsection (b)(1), the Commission shall pre16 pare a final draft of the uniform system of food safety

17 and inspection, taking into account comments received

18 under subsections (b) and (c).

19 SEC. 304. POWERS OF THE COMMISSION.

20 (a) HEARINGS.—The Commission may hold such

21 hearings, sit and act at such times and places, take such

22 testimony, and receive such evidence as the Commission

23 considers advisable to carry out the purposes of this title.

24 (b) INFORMATION FROM FEDERAL AGENCIES.—The

25 Commission may secure directly from any Federal depart-
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1 ment or agency such information as the Commission con2 siders necessary to carry out this title. Upon request of

3 the Chairman of the Commission, the head of the depart4 ment or agency shall furnish the information to the Com5 mission.

6 (c) POSTAL SERVICES.—The Commission may use

7 the United States mails in the same manner and under

8 the same conditions as other departments and agencies of

9 the Federal Government.

10 SEC. 305. ADMINISTRATIVE MATTERS.

11 (a) COMPENSATION.—

12 (1) IN GENERAL.—Subject to paragraph (2),

13 members of the Commission shall serve without com14 pensation.

15 (2) TRAVEL EXPENSES.—A member of the

16 Commission shall be allowed travel expenses, includ17 ing per diem in lieu of subsistence, at rates author18 ized for employees of agencies under subchapter I of

19 chapter 57 of title 5, United States Code, while

20 away from the home or regular place of business of

21 the member in the performance of services for the

22 Commission.

23 (b) STAFF.—

24 (1) IN GENERAL.—The Chairperson of the

25 Commission may, without regard to the civil service
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1 laws and regulations, appoint and terminate the em2 ployment of an executive director and such other ad3 ditional personnel as may be necessary to enable the

4 Commission to perform the duties of the Commis5 sion. The employment of an executive director shall

6 be subject to confirmation by the Commission.

7 (2) COMPENSATION.—The Chairperson of the

8 Commission may fix the compensation of the execu9 tive director and other personnel without regard to

10 the provisions of chapter 51 and subchapter III of

11 chapter 53 of title 5, United States Code, relating

12 to classification of positions and General Schedule

13 pay rates, except that the rate of pay for the execu14 tive director and other personnel may not exceed the

15 rate payable for level V of the Executive Schedule

16 under section 5316 of such title.

17 (c) DETAIL OF GOVERNMENT EMPLOYEES.—A Fed18 eral Government employee may be detailed to the Commis19 sion without reimbursement. The detail shall be without

20 interruption or loss of civil service status or privilege.

21 (d) PROCUREMENT OF TEMPORARY AND INTERMIT22 TENT SERVICES.—The Chairperson of the Commission

23 may procure temporary and intermittent services under

24 section 3109(b) of title 5, United States Code, at rates

25 for individuals that do not exceed the daily equivalent of
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1 the annual rate of basic pay prescribed for level V of the

2 Executive Schedule under section 5316 of such title.

3 (e) TERMINATION.—The Commission shall terminate

4 30 days after the date on which the Commission completes

5 the final draft of the uniform food safety and inspection

6 system under section 303(d).

7 TITLE IV—GENERAL

8 PROVISIONS

9 SEC. 401. REPORTS.

10 On the date that is 1 year after the date of the enact11 ment of this Act, and 3 years thereafter, the Director shall

12 report to Congress on the estimated additional cost of im13 plementing this Act over the cost as if this Act had not

14 been implemented.

15 SEC. 402. AUTHORIZATION OF APPROPRIATIONS.

16 There are authorized to be appropriated such sums

17 as are necessary to carry out this Act and the amendments

18 made by this Act.

19 SEC. 403. EFFECTIVE DATE.

20 (a) IN GENERAL.—Except as provided in subsection

21 (b), this Act and the amendments made by this Act shall

22 become effective on the earlier of—

23 (1) such date during the 180-day period begin24 ning on the date of enactment of this Act as the

25 President may direct in an Executive order; or
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1 (2) the date that is 180 days after the date of

2 the enactment of this Act.

3 (b) COMMISSION.—Title III shall become effective on

4 the date of enactment of this Act.

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