FDA Speculates on Outcome if CHB Were "U.S. Agent" in FSMA Foreign Supplier Verification
During the September 2011 annual NCBFAA1 Government Affairs Conference, a Food and Drug Administration official discussed the role of customs brokers under the Food Safety Modernization Act’s foreign supplier verification program (FSVP), which requires each food importer to conduct verification activities2 to ensure the food they import from foreign suppliers is safe.
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Controversy over Definition of Importer & Resulting Role of CHB
For purposes of the FSVP, the FSMA defines importer as 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.
This definition suggests that a customs broker designated as the U.S. agent by a foreign owner or consignee could be considered an importer under the FSVP, which could make the broker responsible for carrying out the foreign supplier verification requirements and activities.
(In addition to this controversial definition, the FSMA has a separate definition of importer3 for the Voluntary Qualified Importer Program (VQIP), causing FDA to seek comments on the discrepancy. See ITT’s Online Archives or 05/17/11 news, 11051730, for BP summary of the trade’s comments, with some suggesting importer should mean importer of record for both programs; others stating it should mean the party that causes a shipment to enter the U.S.; etc.)
Official Says if Broker Was the U.S. Agent, Would Likely Only Ensure FSVP Requirements Met
The official stated that while he does not yet know how importer will ultimately be defined or interpreted under the FSVP or the exact role that brokers will play, he “thinks” that customs brokers named the U.S. agent would probably only have to ensure that foreign supplier verification activities were carried out, not be the individual who actually conducts these activities.
(He also said he would investigate if there was a way to generate a list of U.S. agents due to one broker’s concern that a foreign owner or consignee could conceivably name them as a U.S. agent without their knowledge.)
1National Customs Brokers & Forwarders Association of America, Inc.
2Verification activities, which will be established by regulation, could include monitoring records for shipments, lot-by-lot certification of compliance, annual on-site inspections, checking the hazard analysis and risk-based preventive control plan of the foreign supplier, and periodically testing and sampling shipments.
3For the VQIP program, the FSMA states the term ‘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 ITT’s Online Archives or 09/22/11 news, 11092234 and 11092226, for BP summaries of other aspects of the official’s presentation, including expected delays of the FSVP and VQIP provisions of the FSMA, the status of other FSMA import provisions, and the fact that PREDICT is now deployed in 13 FDA districts.
See ITT’s Online Archives or 05/02/11 news, 11050223, for BP summary of NCBFAA submitting a letter to FDA stating that brokers should not be primarily responsible for FSMSA food safety as they lack first-hand supply chain knowledge.)