NCBFAA Warns FDA that new FSMA Foreign Facility Agent Can't be the "Prior Notice" Agent

FDA Identified “U.S. Agent” as Party to Pay FSMA Foreign Facility Reinspections in Aug Fee Notice

In August 2011, FDA issued a notice announcing the fiscal year 2012 $224-$325 hourly fees that it will charge (as authorized by the FSMA) for its (i) food/feed import reinspection activities (including addressing requests to remove a product from an Import Alert, to release detained articles, etc.); (ii) food facility reinspections and (iii) FDA recall activities resulting from a firm's non-compliance with a food recall order. (See ITT’s Online Archives 11080114, 11091514 and 11092922 for summaries and reminders on the fees. See ITT’s Online Archives 11100412 for summary of FDA delaying the fees with respect to (i) above but moving forward with the fees for (ii) and (iii).

NCBFAA states that throughout the August notice, FDA discussed who would be responsible for paying the various fees related to imported food. Primarily, the FDA identified this person as the U.S. "owner or consignee." At other times, it was the "importer." Or, when the responsible party is a foreign entity, such as with fees for reinspection of foreign facilities, it was the "U.S. agent" of the foreign entity.

FDA’s Aug Notice Did not Define U.S. Agent or Explain How to Become One

However, FDA did not define in its notice who the agent is or how one becomes an agent. NCBFAA believes that this is a critical omission that must be clearly and explicitly resolved before the importer fees are implemented.

Concerned CHBs’ Designation as U.S. Agent for Prior Notice Could Be Expanded to New Fee

NCBFAA explains that many customs brokers have knowingly agreed to be designated as a U.S. agent for Prior Notice filings. However, they are concerned that FDA may be expanding the meaning of “U.S. agent” from the limited purpose of PN filings to a party responsible for the billing and payment of substantial fees for foreign facility reinspections. NCBFAA is also concerned that sometimes, other parties designate customs brokers as an agent without their knowledge.

Brokers Will not Accept this Liability, Warns of Food Import Disruptions

NCBFAA cautions that many agents will not accept the open-ended liability associated with the FSMA's definition of agent. Therefore, there is the potential for serious disruptions to the food import process, as food shipments arriving at the border with deficient foreign facility registrations (because the agent has suddenly "resigned") will be inadmissible.

Urges FDA to Separate 2 Entities or at Least Notify All Those Designated as U.S. Agents

NCBFAA urges FDA to separate customs brokers’ role as U.S. agent for Prior Notice purposes from any role of a “U.S. agent” for the purpose of billing and paying fees for a foreign facility reinspection.

However, if FDA decides to move in this direction anyway, NCBFAA recommends that FDA at least provide notice to all those existing U.S. agents for Prior Notification purposes and explain to them all of the responsibilities they may have going forward.

Comment Period on Fees Extended to Nov 30

Note that FDA has extended the comment period on its August 2011 notice announcing the FY 2012 fees described above until November 30, 2011. (See ITT's Online Archives 11102718 for summary.)

(See ITT’s Online Archives 11092305 for summary of FDA speculating on the outcome if the CHB were the “U.S. Agent” in FSMA foreign supplier verification.

See ITT’s Online Archives 11050223 for 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.)