CBP Issues Enforced Compliance Procedures and Penalties/Mitigation Guidelines for Prior Notice of Imported Food

In addition, an attachment to the memorandum provides guidelines for penalty assessment and mitigation for Bioterrorism Act violations involving PN.

This is Part I of a two-part series of summaries on CBP's memorandum and guidelines, and highlights CBP's memorandum regarding Phase 3 and Phase 4 of the Bioterrorism Act enforcement plan for PN. See future issue of ITT for Part II highlighting the penalty assessment/mitigation guidelines.

According to the memorandum, as of June 4, 2004, CBP moved to Phase 3 of the Bioterrorism Act enforcement plan for PN, which CBP states will last until August 12, 2004. Phase 4, the final phase of the enforcement plan, will take effect on August 13, 2004.

Informed Compliance During Phase 3 of Implementation

During Phase 3, CBP states that informed compliance will generally be offered to violators who commit a Category 3 violation involving inaccurate or untimely filing of PN, or importation from an unregistered facility. The memorandum explains that port directors will issue informed compliance notices to violators.

(See ITT's Online Archives or 05/14/04 news, 04051410, for BP summary of Phase 3's delayed implementation, as well as FDA's December 2003 Compliance Policy Guide for Phase 3. The actions recommended for Phase 3 in the FDA's Guide are substantially similar to those described for Phase 3 in this memorandum.)

Enforced Compliance During Phase 3 of Implementation

CBP states that, under Phase 3 and in consultation with FDA, it may assess civil monetary penalties for violation of 19 USC 1595a(b) against any party who aids or abets the importation of any merchandise contrary to law. In addition, CBP states that the following actions may be taken for different PN violations during Phase 3:

All Category 1 violations, and Category 2 violations involving the failure to provide PN, will be subject to refusal of admission for the merchandise and possible civil monetary penalties. Any Category 3 violations involving failure to provide PN will be subject to refusal of admission but will not be subject to civil monetary penalties.

(CBP notes that the Automated Commercial System (ACS) has been programmed to reject Automated Broker Interface (ABI) entries that are received for which no PN information is on file. For non-ABI entries, the importer or agent must provide a copy of the printout demonstrating that PN has been transmitted. CBP states that the PN confirmation number may also be supplied by handwritten note on the import documents (e.g. manifest, invoice, bill of lading, etc.). If they are unable to do so, the port is to refuse admission to the shipment. (See CBP's memorandum for definition of "refusal".))

Category 2 violations involving inaccurate or untimely PN or importation from an unregistered facility will also be subject to civil monetary penalties, but will not be subject to refusal of admission.

In either of the above cases, CBP states that Port Directors will initiate an Option 1 enforcement scheme, whereby the violator is offered the opportunity to pay. The violator is not required to accept this Option 1 settlement (mitigated) amount, but may petition for relief pursuant to 19 CFR Part 171 (termed "Option 2" in CBP's guidelines). If the Option 1 settlement (mitigated) amount is not accepted and the violator fails to show that the violation did not occur, or that it occurred solely because of Government error, the violator will have to pay an amount that is higher than the Option 1 amount in order to settle the case.

Phase 4 Implementation

CBP states that Phase 4 will mark the completion of the Bioterrorism Act enforcement plan for PN. Phase 4 will take effect on August 13, 2004. All violations, regardless of category or type, may be subject to civil monetary penalties, and the associated merchandise will be refused admission into the U.S.

Memorandum on "Procedures for Implementation of Enforced Compliance and Penalties for the Bioterrorism Act," with "Penalty Assessment and Mitigation Guidelines for Prior Notice under the Bioterrorism Act" Attachment (posted 06/21/04) available at http://www.cbp.gov/ImageCache/cgov/content/import/commericial_5fenforcement/bioterrorism/external_5fbt_5faprocedures_2edoc/v1/external_5fbt_5faprocedures.doc

BP Note

The above summary reflects CBP source statements that the scope of this memorandum is limited to violations of the Bioterrorism Act's PN requirements. Although food facility registration is discussed in certain places, CBP sources explain that this is intended to be within the context of PN submission.