NCBFAA Praises FSVP Importer Definition; Expresses Implementation Concerns
The National Customs Brokers and Forwarders Association of America (NCBFAA) applauded the Food and Drug Administration’s proposed definition of importer for the purposes of the Foreign Supplier Verification Program, in comments to agency submitted Nov. 14. In its July proposed rule, FDA proposed to define the importer as “the person who caused a food to be imported,” rather than as the CBP importer of record, because the nominal importer of record may not know much about the product (see 13072628). “This is an important distinction and we are encouraged that the FDA showed such a clear understanding of the nuances of the supply chain,” said NCBFAA. But while NCBFAA praised the agency’s adoption of its preferred importer definition, the association raised some concerns with implementation.
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For one, NCBFAA expressed concern about how the FSVP importer will be identified. “The identity of the FSVP importer will not always be clear,” it said. The broker association recommended that FDA insert a requirement that the importer of record provide the name and DUNS number of the FSVP importer on entry documentation. Although the importer of record may not be the same as the FSVP importer, said NCBFAA, the importer of record should be responsible for identifying the FSVP importer because it is the party responsible for the entry.
NCBFAA also took issue with the potential for expanded U.S. agent requirements in the FSVP proposed rule. FDA’s proposal would require a foreign owner or consignee of food to designate a U.S. agent as the FSVP importer when there is no U.S. owner or consignee at the time of entry. The proposed rule did not, however, say how the FSVP U.S. agent would be determined. NCBFAA worried that the U.S. agent designated in FDA’s food facility registration system for Prior Notice purposes would be made the FSVP U.S. agent as well. “We strongly believe that the ‘U.S. agent’ listed on the food facility registration should not automatically be designated as the FSVP U.S. agent,” it said.
The problem is that facility registration U.S. agents may not be aware of their increased liability. Facility registration U.S. agents were originally created under the Bioterrorism Act for the limited purpose of notification and communication between FDA and the foreign facility, said NCBFAA. Following passage of the Food Safety Modernization Act, FDA also made the U.S. agent liable for foreign facility reinspection fees. If the same U.S. agent is used for FSVP importer purposes, that would add still another layer of liability. “FDA must recognize the impact of this stacking liability,” said NCBFAA. “Many of the 300,000+ U.S. agents identified in foreign food facilities’ registrations agreed to a much more limited role and will not be in a position to accept this drastically expanded scope of responsibility,” it said.
If FDA increases U.S. agent liability by choosing to use the foreign facility registration U.S. agent for FSVP purposes, it needs to update its foreign food facility registration system to more effectively notify U.S. agents, said NCBFAA. Currently, there is no requirement that the U.S. agent formally agree to serve in such a capacity -- the foreign facility simply names the agent, and FDA emails a notification to the U.S. agent without knowing whether it has a valid email address. “Now, however, with a U.S. agent responsible for verifying the safety of the food product’s supply chain, a more rigorous, transparent process is needed, whereby the U.S. agent knowingly and explicitly accepts this role,” said NCBFAA.
Email ITTNews@warren-news.com for a copy of the NCBFAA comments.