NCBFAA Says Brokers Should Not Be Responsible for FSMA Food Safety
The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) submitted a letter to the Food and Drug Administration on April 29, 2011 urging the agency not to place primary responsibility for the safety of imported food on third-parties such as customs brokers, as it implements the import provisions of the Food Safety Modernization Act (FSMA).
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(FDA had asked for comments by April 29, 2011 on implementation of the import provisions of the FSMA as the law has numerous import provisions and two different definitions of importer. For example, the FSMA requires food importers to establish a foreign supplier verification program (FSVP) and conduct activities to ensure that food they import is safe. For the FSVP, the law states that importer means the U.S. owner or consignee of the article of food at the time of entry of such article into the U.S., or if there is no U.S. owner or consignee, the U.S. agent or representative of a foreign owner or consignee of the article of food at the time of entry of such article into the U.S.
The FSMA also includes a voluntary qualified importer program (VQIP) to provide expedited review and importation to participants that import from certified foreign facilities. Under the VQIP, importer means the person that brings food, or causes food to be brought, from a foreign country into the customs territory of the U.S.
See future issue of ITT for BP summary of other comments received on FSMA import issues.)
Those with Control of Supply Chain Should Be Responsible for Food Safety
According to NCBFAA, the FSMA places the primary responsibility for the safety of imported food on the people who have knowledge and control over the supply chain. They believe that these parties are the U.S. owner, the consignee who purchases the product, or a U.S. person who specifically takes on the role as the agent of the foreign owner for this purpose.
The organization does not believe the goals of the FSMA would be served by placing this responsibility on third-parties such as customs brokers simply because they are at a convenient point in the supply chain. This is because such parties are not in a position to know first-hand details about the product or to control who supplies the product.
FDA Should Consider Which Party Has Financial Interest, Not Confuse Terms
When attempting to clarify who is an importer under the FSMA, NCBFAA encourages the FDA to consider:
Financial interest, not terms. In general, the "importer" should be a person with a financial interest in the product, and the FDA should not rely exclusively on terms, such as consignee, agent, or importer-of-record, which are used in different ways in different contexts. A customs broker is not an importer with a financial interest in the importation and confusing the two is like confusing the travel agent with the traveler.
Need for affidavits. Because the responsibilities of being a U.S. agent for a foreign food supplier are significant, FDA should require affidavits signed by both parties accepting this specific role for the purpose of FDA food importations and no one should have that responsibility forced on them by virtue of their presence in the supply chain.
Clear definitions. In defining the term "importer", "consignee" or "agent" for determining the admissibility of food products, FDA must take care not to confuse definitions and terms used for other purposes under other statutes.
Importer Should be Party Causing Goods to Come to U.S. or Agent w/ Agreement
NCBFAA thinks that the importer for FDA purposes should be the person who caused the goods to come to the U.S. -- that is, the party in the U.S. with a financial interest in the product or a U.S. agent designated by a foreign manufacturer or supplier through a specific written agreement between the foreign entity and the U.S. agent and filed with the FDA.
They add that either of these parties should be required to register with the FDA and receive a registration number, which would be provided at the time of entry. This would provide the certainty required for FDA and would ensure that a true party in interest is responsible for the food product.
(See ITT’s Online Archives or 03/31/11 news, 11030124, for BP summary of FDA seeking the trade’s advice on implementing the FSMA import provisions.
See ITT’s Online Archives or 03/07/11 news, 11030720, for BP summary of an FDA overview of the FSMA, including the above importer provisions.
See ITT’s Online Archives or 01/04/11 news, 11010426, for a comprehensive BP summary of the FSMA.)
Letter available by emailing a request to documents@brokerpower.com