NCBFAA, Others Call on FDA to Withdraw Its Bio-Terrorism

Washington, DC: In a comment letter signed by the National Customs Brokers and Forwarders Association of America, Inc. (NCBFAA) and many of its Affiliated Associations, the NCBFAA has called on the Food and Drug Administration (FDA) to withdraw the proposed bio-terrorism rules. Saying the rules are " . . . unrealistic, unduly burdensome, and will unnecessarily interdict the normal flow of trade in food products," the NCBFAA recommended that the FDA involve the U.S. Customs Service in any future proposals. As proposed, the FDA rules would amend the FDA regulations to require that prior notice of imported food shipments be submitted electronically by noon of the calendar day before the day of arrival.
        While the NCBFAA applauds the FDA's purpose of protecting the American public, the Association does not believe the measures, "as currently set forth, . . . represent the most appropriate solutions for achieving the purposes of the Bioterrorism Act." In the NCBFAA's view, the proposal's " . . .unintended effect will be to impose impossible burdens on U.S. food importers, as well as entities involved in the transportation and importation of these products."

        In arguing against the proposals, the NCBFAA pointed to a number of problems with the proposals, including:

• The time for submission of prior notice disregards various factors that effect the flow of trade.
• The NPRM will unnecessarily create a new electronic interface for importers, with new requirements.
• The proposed regulations will require new ABI software.
• Detaining cargo at arrival terminals will congest the ports.
• Registration of all facilities is duplicative.
• The proposed rules use terms and definitions that are incompatible with their traditional meaning in customs and international trade.
• The prior notice information required is unduly burdensome.
• The responsibilities and liabilities of an "agent" should specifically exclude licensed customs brokers.
• Limiting authorized parties submitting prior notice to U.S. agents is discriminatory.
• The requirements of the NPRM will cause economic harm to the importer and carrier without a commensurate increase in security.
• The registration requirement will not achieve the FDA’S desired goal of product tracking.
• Registration of facilities under the proposed regulations must be verifiable.
• The regulations place an unreasonable burden on carriers.
• The NPRM does not comply with the requirements of the Regulatory Flexibility Act or E.O. 12866.

        In conclusion, the NCBFAA noted that it is anxious to see that regulations are put in place that will help insure against bio-terrorist attacks on our food supplies. "However, it appears that the proposed regulations go too far in trying to reach that goal and will have the effect of interdicting the smooth flow of legitimate commerce and economically disadvantage importers, customs brokers, transportation companies and various other entities involved in the supply chain," said the NCBFAA.
        Further, while security can be measurably enhanced through the transmission of advance import shipment data, the FDA should not strike out to achieve this.
        "This is certainly no time for regulatory agencies to fight "turf wars," at the expense of the public," the NCBFAA said. "Rather, FDA should partner with Customs in an effort to find one system that will satisfy the needs of both agencies, at minimum cost to the public."
        With headquarters in Washington, DC, the NCBFAA (members.ncbfaa.org) represents nearly 700 member companies - the nation's leading freight forwarders, customs brokers, ocean transportation intermediaries (OTIs) and air cargo agents. Established in 1897 in New York, NCBFAA is the strong, effective national voice of the industry. Through its various committees, counsel and representatives, the Association maintains a close watch over legislative and regulatory issues that affect its members. It keeps them informed of these and other related issues through its weekly Monday Morning eBriefing, Quarterly NCBFAA Bulletin, and various meetings and conferences throughout the year.