[Federal Register: October 10, 2003 (Volume 68, Number 197)]
[Rules and Regulations]
[Page 58975-59077]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc03-18]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 1
[Docket No. 02N-0278]
RIN 0910-AC41
Prior Notice of Imported Food Under the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002
AGENCY: Food and Drug Administration, HHS.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Food and Drug Administration (FDA) is issuing an interim
final regulation that requires the submission to FDA of prior notice of
food, including animal feed, that is imported or offered for import
into the United States. The interim final rule implements the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002
(the Bioterrorism Act), which requires prior notification of imported
food to begin on December 12, 2003, even in the absence of a final
regulation. The interim final rule requires that the prior notice be
submitted to FDA electronically via either the Bureau of Customs and
Border Protection (CBP) Automated Broker Interface (ABI) of the
Automated Commercial System (ACS) or the FDA Prior Notice System
Interface (FDA PN System Interface). The information must be submitted
and confirmed electronically as facially complete by FDA for review no
more than 5 days and no less than 8 hours (for food arriving by water),
4 hours (for food arriving by air or land/rail), and 2 hours (for food
arriving by land/road) before the food arrives at the port of arrival.
Food imported or offered for import without adequate prior notice is
subject to refusal and, if refused, must be held.
DATES: This interim final rule is effective December 12, 2003. Submit
written or electronic comments by December 24, 2003.
ADDRESSES: Submit written comments to the Division of Dockets
Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane,
rm. 1061, Rockville, MD 20852. Submit electronic comments to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov/dockets/ecomments
.
FOR FURTHER INFORMATION CONTACT: Deborah Ralston, Office of Regulatory
Affairs, Office of Regional Operations, Food and Drug Administration,
5600 Fishers Lane, Rockville, MD 20857, 301-443-6230.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Current Process--Admissibility Determinations Under Section
801(a) of the FD&C Act
B. Process After December 12, 2003--Prior Notice Determination
Followed by Admissibility Determination
II. Overview of the Interim Final Rule and Significant Changes Made
to the Proposed Rule
A. ``What Definitions Apply to This Subpart?'' (Section 1.276
Proposed as Sec. 1.277)
B. ``What is the Scope of This Subpart?'' (Section 1.277
Proposed as Sec. 1.276)
C. ``Who Is Authorized to Submit Prior Notice?'' (Section 1.278
Proposed as Sec. 1.285)
D. ``When Must Prior Notice Be Submitted to FDA?'' (Section
1.279 Proposed as Sec. 1.286)
E. ``How Must You Submit Prior Notice?'' (Section 1.280 Proposed
as Sec. 1.287)
F. ``What Information Must Be in a Prior Notice?'' (Section
1.281 Proposed as Sec. 1.288)
G. ``What Must You Do If Information Changes After You Have
Received Confirmation of a Prior Notice From FDA?'' (Section 1.282
Proposed Sec. Sec. 1.289 to 1.294)
H. ``What Happens to Food That Is Imported or Offered for Import
Without Adequate Prior Notice?'' (Section 1.283 Proposed as Sec.
1.278)
I. ``What Are the Other Consequences of Failing to Submit
Adequate Prior Notice or Otherwise Failing to Comply With This
Subpart?'' (Section 1.284 Proposed as Sec. 1.278)
J. ``What Happens to Food That Is Imported or Offered for Import
from Unregistered Facilities That Are Required to Register Under 21
CFR Part 1, Subpart H?'' (Section 1.285)
III. Comments on the Proposed Rule
A. General Comments and Outreach
B. Foreign Trade Issues
C. ``What Definitions Apply to This Subpart?'' (Section 1.276
Proposed as Sec. 1.277)
D. ``What Is the Scope of This Subpart?'' (Section 1.277
Proposed as Sec. 1.276)
E. ``Who Is Authorized to Submit Prior Notice?'' (Section 1.278
Proposed as Sec. 1.285)
F. ``When Must Prior Notice Be Submitted to FDA?'' (Section
1.279 Proposed as Sec. 1.286)
G. ``How Must You Submit Prior Notice?'' (Section 1.280 Proposed
as Sec. 1.287)
H. ``What Information Must Be in a Prior Notice?'' (Section
1.281 Proposed as Sec. 1.288)
I. ``What Must You Do If Information Changes After You Have
Received Confirmation of a Prior Notice From FDA?'' (Section 1.282
Proposed as Sec. Sec. 1.289 to 1.294)
J. ``What Happens to Food That Is Imported or Offered for Import
Without Adequate Prior Notice?'' (Section 1.283) and ``What Are the
Other Consequences of Failing to Submit Adequate Prior Notice or
Otherwise Failing to Comply With This Subpart?'' (Sec. 1.284
Proposed as Sec. 1.278)
K. ``What Happens to Food That Is Imported or Offered for Import
From Unregistered Facilities That Are Required to Register Under
Section 415 of the FD&C Act, 21 U.S.C. 350d and 21 CFR Part 1,
Subpart H?'' (Section 1.285)
IV. Issuance of an Interim Final Rule and Effective Date; Comments
V. Analysis of Economic Impacts
A. Final Regulatory Impact Analysis
1. Need for Regulation
2. Interim Final Rule Coverage
3. Regulatory Options Considered
4. Summary of Options
5. Benefits
B. Small Entity Analysis (or Final Regulatory Flexibility
Analysis)
1. Number of Establishments Affected
2. Costs per Entity
3. Additional Flexibility Considered
C. Unfunded Mandates
D. Small Business Regulatory Enforcement Fairness Act (SBREFA)
Major Rule
VI. Paperwork Reduction Act of 1995
VII. Analysis of Environmental Impact
VIII. Federalism
IX. References
I. Background
In the Federal Register of February 3, 2003 (68 FR 5428), the
Department of Health and Human Services (FDA) and the Department of
Treasury (U.S. Customs Service) issued a joint notice of proposed
rulemaking requiring submission to FDA of prior notice of human and
animal food that is imported or offered for import into the United
States. The events of September 11, 2001, had highlighted the need to
ensure that FDA had additional tools to help prevent a food-related
bioterrorism event or other public health emergency. Congress responded
by passing the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002 (the Bioterrorism Act) (Pub. L. 107-188), which
was signed into law on June 12, 2002. The Bioterrorism Act includes a
provision in Title III (Protecting Safety and Security of Food and Drug
Supply), Subtitle A'Protection of Food Supply, section 307, which
changes when FDA will receive certain information about imported foods
by requiring the Secretary of Health and Human Services (the
Secretary), after consultation with the Secretary of the Treasury, to
issue an implementing regulation by December 12, 2003, to require prior
notification to FDA of food that is imported or offered for import into
the United States. Under
[[Page 58975]]
the Homeland Security Act of 2002 (Pub. L. 107-296), the Secretary of
the Treasury has delegated all relevant Customs revenue authorities to
the Secretary of Homeland Security who has, in turn, delegated them to
the Commissioner of the Bureau of Customs and Border Protection (CBP or
Customs). Thus, we are issuing this interim final rule jointly with the
Secretary of Homeland Security.
Section 307 of the Bioterrorism Act amends the Federal Food, Drug,
and Cosmetic Act (the FD&C Act) by adding section 801(m) (21 U.S.C.
381(m)) and amending section 301 (21 U.S.C. 331). (In the regulation
itself, which is codified in Title 21 of the Code of Federal
Regulations, the Federal Food, Drug, and Cosmetic Act is referred to as
``the act.'' Thus, when the regulation is quoted in this preamble the
term ``the act'' will be used to refer to the Federal Food, Drug, and
Cosmetic Act. However, in this preamble we refer to the Federal Food,
Drug, and Cosmetic Act as ``the FD&C Act'' in the preamble to
distinguish it from the Bioterrorism Act.)
The Bioterrorism Act also requires FDA to issue regulations
requiring certain food establishments to register with FDA (section
305), directs FDA to issue regulations regarding maintenance of certain
records (section 306), and grants FDA the authority to administratively
detain food (section 303). FDA has published proposed rules
implementing section 305 of the Bioterrorism Act (68 FR 5378, February
3, 2003), section 303 of the Bioterrorism Act (68 FR 25242, May 9,
2003), and section 306 of the Bioterrorism Act (68 FR 25188, May 9,
2003). The interim final rule implementing the food facility
registration requirements is published elsewhere in this issue of the
Federal Register.
A. Current Process--Admissibility Determinations Under Section 801(a)
of the FD&C Act
Section 801(a) of the FD&C Act sets out current standards and
procedures for FDA review of imports under its jurisdiction. Section
801(a) provides for examination of imports and also authorizes FDA to
refuse admission of imports that appear, from examination or otherwise,
to be, inter alia, adulterated or misbranded. When an FDA-regulated
product is imported, generally customs brokers submit entry information
to CBP on behalf of the importers of record. CBP then provides entry
information to FDA to enable admissibility decisions to be made. Under
CBP authorities, entry of the merchandise can be made up to 15 days
after arrival.
CBP regulations provide for different kinds of entries. Commonly,
merchandise is the subject of an entry for consumption or warehouse
(i.e., unrestricted, general use) under a basic importation and entry
bond at the port of arrival. A warehouse entry is a CBP entry procedure
as described in 19 CFR part 144. It allows imported product (with some
restrictions) to be entered without payment of duty, provided it is
kept in a bonded warehouse and not distributed. CBP authorities also
allow for an Immediate Transportation or IT entry of merchandise for
transportation under a custodial bond from the port of arrival to
another port where the consumption or warehouse entry will be made or
the product will be admitted into a foreign trade zone (FTZ) located
outside of the port area. In addition, if the merchandise is going to
an FTZ in the port area, FTZ admission documents are presented to CBP.
Finally, a transportation and exportation (or T&E) entry may be filed
if the merchandise is to be transshipped from the port of arrival
through the United States to another port for export.
FDA currently receives electronic information about entries from
CBP through CBP's ABI of the ACS. FDA receives this information through
its Operational and Administrative System for Import Support (OASIS).
The entry types currently transmitted through the ABI/ACS interface
with OASIS include consumption entries and warehouse entries but not IT
entries, T&E entries, or admissions into FTZs. The customs broker or
self-filer electronically submits entry information to ABI/ACS,
including: The identification of the product by the Harmonized Tariff
Schedule (HTS) code; the entry type; the entry number (including both
the ACS line number and the FDA line number); the arrival date; the
port; the port of unlading; the carrier code; the vessel name and
voyage, flight or trip number; importer and ultimate consignee; the
quantity; value; country of origin; bill of lading or airway bill
number; the manufacturer; the importer of record; and the ultimate
consignee. The HTS codes are flagged to indicate which products will
require FDA review; all FDA-regulated products are covered, not just
foods. The additional information that is currently transmitted through
the ABI/ACS interface to FDA includes: The FDA manufacturer; the FDA
shipper, the FDA Country of Production (country of origin); the
complete FDA product code; a description of the food in common business
terms; the quantity for each FDA line, and, as ``Affirmations of
Compliance,'' information specific to certain products, such as the
Food Canning Establishment (FCE) Number.\1\ CBP regulations do not
mandate electronic transmission of entry information; therefore, some
entries are filed in paper. If a ``paper'' entry is filed, it is
customary for CBP to require that copies of entry documentation by
submitted to FDA. The entry documents contain the same information as
the electronic filing, typically the information required on CBP's
Entry/Immediate Delivery (CF3461), and a copy of the foreign invoice.
The paper entries may be presented at the time of arrival or after.
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\1\ Affirmations of Compliance are data elements that a customs
broker or self-filer currently uses when transmitting certain
information to FDA through ABI/ACS to OASIS. Each provides a
mechanism to indicate (or affirm) compliance with a specific FDA
regulatory requirement.
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After information is transmitted from ABI/ACS, OASIS performs
additional validations on the data. If no corrections from the customs
broker or self-filer are needed, it screens the entry information
against FDA admissibility criteria. If the FDA electronic review
determines that further evaluation of the information or article of
food is not necessary, the system transmits a message back through the
FDA/CBP interface that the article of food ``may proceed without FDA
examination.'' If further evaluation is necessary, FDA staff will
review the entry information and may request additional information
necessary to make an admissibility determination or may examine or
sample the product. Section 801(b) of the FD&C Act provides for the
release of FDA regulated products to the importer or owner, under bond,
before the FDA admissibility decision is made. Accordingly, FDA
examination may take place at a location to which the product has been
moved. Because there are no restrictions on movement, the product may
be at the border, within the confines of a port, at a public storage
facility in the vicinity of the importer, or at the ultimate
consignee's warehouse. Finally, if the FDA electronic review indicates
that the product appears ``by examination or otherwise'' to be subject
to refusal of admission under section 801(a) of the FD&C Act (e.g.,
appears to be adulterated or misbranded), the FDA reviewer will
evaluate the entry information based on FDA guidance, take appropriate
action, and notify the importer as well as the customs broker.
Under current laws and regulations, FDA may receive the information
about some food imports some days after the food has arrived in the
United States,
[[Page 58976]]
has been moved from the port of arrival, and has been delivered to the
ultimate consignee. While FDA may ultimately receive electronic entry
notification of IT entries when the consumption entry is later filed,
FDA does not receive electronic notification with information about
food entered for transshipment for export or when the food is admitted
to an FTZ.
The admissibility standard in section 801(a) of the FD&C Act
largely focuses on whether the article of food appears to have been
safely produced, contains no contaminants or illegal additives or
residues, and is properly labeled. Section 801(a) provides that an
article of food is subject to refusal of admission if it ``appears,
from physical examination or otherwise': (1) To have been manufactured,
processed, or packed under insanitary conditions; (2) to be forbidden
or restricted in sale in the country in which it was produced or from
which it was exported; or (3) to be adulterated or misbranded. The food
adulteration and misbranding provisions (sections 402 and 403 of the
FD&C Act) set out most of the FD&C Act's safety and labeling standards
for foods.
B. Process After December 12, 2003--Prior Notice Determination Followed
by Admissibility Determination
Section 801(m) provides that an article of food is subject to
refusal of admission if adequate prior notice has not been provided to
FDA. Thus, the refusal standard in section 801(m) focuses in the first
instance on whether the requisite information has been provided in a
timely fashion, while the refusal standard in section 801(a) focuses on
whether the article was safely produced, contains no contaminants or
illegal additives or residues, and is properly labeled.
By adding the prior notice requirement to the FD&C Act, Congress,
in the Bioterrorism Act, changed when information about FDA-regulated
food imports must be provided to FDA and what happens if the
information is not provided. The prior notice provisions require that
notice must be provided on imported food shipments to FDA before
arrival. If adequate notice is not provided, section 801(m) of the FD&C
Act provides that the food is subject to refusal, and that refused food
must be held until adequate notice is given and may not be delivered to
the importer, owner, or consignee. The stated purpose of requiring
notice of imported food shipments before arrival in the United States
is to enable FDA to conduct inspections of imported food at U.S. ports
(see section 801(m)(1) of the FD&C Act). Thus, FDA intends to use prior
notice information to make decisions about which inspections to conduct
at the time of arrival. Currently, we intend to focus on conducting
these inspections when our information suggests the potential for a
significant risk to public health.
As explained in greater detail in the following paragraphs, FDA and
CBP are coordinating FDA's new prior notice requirements with CBP's and
FDA's existing entry requirements to the greatest extent possible.
Thus, the interim final rule allows prior notice to be submitted
electronically to FDA through either ABI/ACS or the FDA Prior Notice
(PN) System Interface. The HTS codes will be flagged within ABI/ACS to
indicate which HTS codes contain foods subject to prior notice
requirements. In addition, the ABI/ACS interface will provide a new
transaction for transmission of prior notice information on IT and T&E
entries, and FTZ admissions, e.g., the types of entries of which FDA
was not aware or did not know about until many days after arrival in
the United States. This will allow for FDA electronic screening and FDA
staff evaluation of the information so that FDA can assess, before the
food arrives, whether to inspect and to be prepared to conduct that
inspection upon arrival.
FDA expects approximately 90 percent of prior notice submissions
for all importations of foods to be transmitted by a customs broker or
self-filer through the ABI/ACS interface to FDA. FDA estimates that
only 10 percent (or less) of the total importations cannot be
accommodated by the ABI/ACS interface and, therefore, will be submitted
via the FDA PN System Interface.
In addition to requiring submission of the information currently
sent to FDA for admissibility determinations, information identifying
the grower (if known), the country from which the article is shipped,
and anticipated arrival information is also required for prior notice.
If all of the prior notice information is transmitted through the ABI/
ACS interface, no additional transmission of information for
admissibility determinations under section 801(a) of the FD&C Act will
be necessary. If prior notice is submitted through the FDA PN System
Interface, additional transmission through ABI/ACS may be necessary for
CBP purposes and FDA's admissibility evaluation.
Regardless of the mode of transmission, the prior notice
information will undergo both a validation process and screening in
OASIS for food safety and security criteria. After the validation step
is complete, the prior notice will be confirmed by FDA for review and a
reply message sent to the transmitter indicating the prior notice has
been received and confirmed for FDA review. The form of this reply
messaging depends upon the mode of initial transmission: ABI/ACS or FDA
PN System Interface. The clock starts for determining if prior notice
was timely when this prior notice confirmation message is sent by FDA.
If the FDA system does not indicate that further evaluation of or
action on the notice or article of food is necessary for prior notice
purposes, the system will transmit a message back through the OASIS to
ABI/ACS interface for CBP that the article of food ``may be
conditionally released under section 801(b) of the act.'' However, if
additional evaluation of the prior notice information is necessary, FDA
headquarters staff, operating 24 hours a day, 7 days a week, will
review and assess the information and may initiate an examination or
other action by FDA or CBP of the article of food at the port of
arrival or elsewhere, or in the case of rail shipments, within the
confines of the closest appropriate examination site.
In addition, the OASIS system review will determine if further
staff evaluation of the article of food is necessary for admissibility
determinations under section 801(a) of the FD&C Act (e.g., subject to
the guidance in an import alert). If so, FDA staff in the appropriate
district office will take action, which, in addition to the review and
evaluation of the submitted information or other documentation, could
include an examination of the article of food for admissibility
purposes. This admissibility examination may take place at the border
but may also take place at an examination site, a public warehouse, or
other appropriate locations. If FDA determines that refusal under
section 801(a) of the FD&C Act is appropriate, it will follow
appropriate procedures.
II. Overview of the Interim Final Rule and Significant Changes Made to
the Proposed Rule
The highlights of this interim final rule are described briefly in
the following paragraphs and are discussed in more detail later in the
preamble.
A. ``What Definitions Apply to This Subpart?'' (Section 1.276 Proposed
as Sec. 1.277)
[sbull] The term ``the act'' was not changed.
[sbull] The term ``calendar day'' was not changed.
[[Page 58977]]
[sbull] The term ``country from which the article originates'' was
added and defined as ``FDA Country of Production.''
[sbull] The term ``country from which the article of food was
shipped'' was revised to ``country from which the article is shipped.''
[sbull] The term ``FDA Country of Production'' replaces the term
``originating country.'' For an article of food that is in its natural
state, the FDA Country of Production is the country where the article
of food was grown, including harvested or collected and readied for
shipment to the United States. If an article of food is wild fish that
was caught or harvested outside the waters of the United States by a
vessel that is not registered in the United States, the FDA Country of
Production is the country in which the vessel is registered. If an
article of food that is in its natural state was grown, including
harvested or collected and readied for shipment, in a Territory, the
FDA Country of Production is the United States. For an article of food
that is no longer in its natural state, the FDA Country of Production
is the country where the article was made; except that, if an article
of food is made from wild fish aboard a vessel, the FDA Country of
Production is the country in which the vessel is registered. If an
article of food that is no longer in its natural state was made in a
Territory, the FDA Country of Production is the United States.
[sbull] The term ``food'' has been redefined. The new definition
excludes ``food contact substances'' as defined in section 409(h)(6) of
the FD&C Act (21 U.S.C. 348(h)(6)) and ``pesticides'' as defined in 7
U.S.C. 136(u).
[sbull] The term ``grower'' has been added to the interim final
rule. It means a person who engages in growing and harvesting or
collecting crops (including botanicals), raising animals (including
fish, which includes seafood), or both.
[sbull] The term ``international mail'' has been added to the
interim final rule. The term ``international mail'' means foreign
national mail services, but not express carriers, express consignment
operators, or other private delivery services.
[sbull] The term ``no longer in its natural state'' has been added
to the interim final rule. The term means that an article of food has
been made from one or more ingredients or synthesized, prepared,
treated, modified, or manipulated. Examples of activities that render
food no longer in its natural state are cutting, peeling, trimming,
washing, waxing, eviscerating, rendering, cooking, baking, freezing,
cooling, pasteurizing, homogenizing, mixing, formulating, bottling,
milling, grinding, extracting juice, distilling, labeling, or
packaging. However, crops that have been cleaned (e.g., dusted,
washed), trimmed, or cooled attendant to harvest or collection or
treated against pests, waxed, or polished are still in their natural
state for purposes of the prior notice interim final rule. Likewise,
whole fish headed, eviscerated, or frozen attendant to harvest are
still in their natural state for purposes of the prior notice interim
final rule.
[sbull] The term ``port of entry'' has been defined, as having the
meaning given in 19 CFR 101.1.
[sbull] The term ``port of arrival'' has been added to the interim
final rule. The interim final rule defines ``port of arrival'' to mean
``the water, air, or land port at which the article of food is imported
or offered for import into the United States, i.e., the port where the
article of food first arrives in the United States.''
[sbull] The term ``registration number'' has been added to the
interim final rule. Registration number refers to the registration
number assigned by FDA under section 415 of the FD&C Act, 21 U.S.C.
350d, and 21 CFR part 1, subpart H.
[sbull] The term ``shipper'' has been added to the interim final
rule. The interim final rule defines ``shipper'' as ``the owner or
exporter of the article of food who consigns and ships the article from
a foreign country or the person who sends an article of food by
international mail to the United States.''
[sbull] The term ``United States'' has been added to the interim
final rule. It defines ``United States'' as the Customs territory of
the United States, i.e., ``the 50 States, the District of Columbia, and
the Commonwealth of Puerto Rico.''
[sbull] The term ``you'' has been revised to reflect the removal of
limitations on who is authorized to submit prior notice.
B. ``What is the Scope of This Subpart?'' (Section 1.277 Proposed as
Sec. 1.276)
This provision has been revised. Section 1.277(a) clarifies that
the interim final rule applies to all food for humans and other animals
that is imported or offered for import into the United States. This
covers food for use, storage, or distribution in the United States, and
includes food for gifts, trade and quality assurance/quality control
samples, food for transshipment through the United States to another
country, food for future export, and food for use in a U.S. FTZ.
Section 1.277(b) sets out the exclusions from prior notice. It excludes
food for an individual's personal use when it is carried by or
otherwise accompanies the individual when arriving in the United States
(i.e., for consumption by themselves, family and friends, not for sale
or other distribution); food that was made by an individual in his/her
personal residence and sent by that individual as a personal gift
(i.e., for nonbusiness reasons) to an individual in the United States;
food that is imported then exported without leaving the port of arrival
until export; and meat food products, poultry products, and egg
products that, at the time of importation, are subject to the exclusive
jurisdiction of the U.S. Department of Agriculture (USDA) under the
Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry
Products Inspection Act (21 U.S.C. 451 et seq.), or the Egg Products
Inspection Act (21 U.S.C. 1031 et seq.).
C. ``Who Is Authorized to Submit Prior Notice?'' (Section 1.278
Proposed as Sec. 1.285)
This provision has been revised. The interim final rule has been
revised to remove the restriction that the submitter be the U.S.
importer or purchaser. The interim final rule provides that any person
with knowledge of the required information may submit prior notice or
have it transmitted on their behalf.
D. ``When Must Prior Notice Be Submitted to FDA?'' (Section 1.279
Proposed as Sec. 1.286)
This provision has been revised. FDA had proposed that all
information required in the prior notice be submitted to FDA no later
than 12 noon of the calendar day before the day the article of food
arrived at the border crossing in the port of entry. Under the interim
final rule, prior notice must be submitted to FDA and confirmed for FDA
review no less than 2 hours before arrival by land via road, no less
than 4 hours before arrival by air and land via rail, and no less than
8 hours before arrival by water. If the article of food is arriving by
international mail, the prior notice must be submitted before the food
has been sent to the United States and the parcel must be accompanied
by confirmation of FDA receipt of prior notice. With the exception of
prior notice for international mail, prior notice may not be submitted
more than 5 calendar days before the anticipated date of arrival at the
anticipated port of entry. When an article of food that is carried by
or otherwise accompanies an individual is subject to prior notice, the
prior notice must be submitted within the timeframe established for the
mode of transportation, and the food must be accompanied by a copy of
the FDA confirmation including the PN Confirmation Number. Because we
[[Page 58978]]
reduced the timeframes for submitting prior notice in the interim final
rule to the minimum amount of time that we need to meet our statutory
responsibility to receive, review, and respond to prior notice
submissions, the interim final rule does not provide for amendments or
updates to the prior notice. However, as discussed in more detail in
section D, FDA and CBP will be actively exploring ways to reduce prior
notice timeframes, while fulfilling the Bioterrorism Act mandates.
E. How Must You Submit Prior Notice? (Section 1.280 Proposed as Sec.
1.287)
FDA proposed that prior notice, amendments, and updates be
submitted electronically to FDA through the FDA PN System. The interim
final rule provides that prior notice must be submitted electronically,
in English (except an individual's name, the name of a company, or the
name of a street), through either CBP's ABI/ACS or the FDA PN System
Interface. All information must be submitted using the Latin (Roman)
alphabet. The interim final rule eliminates submission of duplicative
information to FDA by those who can file import entry information
through ABI/ACS. FDA and CBP are upgrading and interfacing their
respective electronic systems so that information required for prior
notice can be submitted through ABI/ACS. Information required by the
interim final rule also can be submitted through the FDA PN System
Interface. The interim final rule also provides that if a customs
broker's of self-filer's system is not working or if ABI/ACS is not
working, prior notice must be submitted through the FDA PN System
Interface. If the FDA PN System Interface or OASIS is not operating,
prior notice information must be submitted by e-mail, or by fax to the
FDA, but not in person.
F. What Information Must Be in a Prior Notice? (Section 1.281 Proposed
as Sec. 1.288)
The interim final rule requires the following information to be
submitted in the prior notice:
[sbull] Submitter (name of individual, individual's telephone, fax,
e-mail, name/address of submitting firm);
[sbull] Transmitter, if different than submitter (name of
individual, individual's telephone, fax, e-mail, name/address of
transmitting firm);
[sbull] Entry type;
[sbull] CBP entry identifier, such as the CBP entry number or in-
bond number;
[sbull] The identity of the article of food as follows: The
complete FDA product code; the common or usual name or market name; the
estimated quantity described from largest container to the smallest
package size; and the lot or code numbers or other identifier of the
food if required by the FD&C Act or FDA regulations;
[sbull] Manufacturer, for food no longer in its natural state
(name, address, registration number, except that the requirement to
provide registration number does not apply to an article of food that
is imported for transshipment or other export;
[sbull] Grower, if known, for an article of food that is in its
natural state (name and growing location);
[sbull] Consolidator may voluntarily be provided by the submitter,
at the submitter's option, if the grower is not known (name and
address);
[sbull] FDA Country of Production;
[sbull] Shipper (name, address, registration number; except that
the requirement to provide registration number does not apply to an
article of food that is imported for transshipment or other export;
[sbull] The country from which the article is shipped;
[sbull] Anticipated arrival information (port of arrival and
crossing location within that port, date, and time) or, if the food is
imported by international mail, the anticipated date of mailing;
[sbull] The name and address of the importer, owner, and ultimate
consignee, unless the shipment is imported or offered for import for
transshipment through the United States under a T&E entry, or, if the
food is imported by international mail, the U.S. recipient (name and
address);
[sbull] Mode of transportation;
[sbull] Carrier (SCAC/Standard Carrier Abbreviated Code or IATA/
International Air Transportation Association code or, if codes are not
applicable, the name and country of the carrier) (except for food
imported by international mail);
[sbull] Planned shipment information as applicable (except for food
imported by international mail), including 6-digit HTS code; and
[sbull] If the article of food is under hold for failure to submit
prior notice or submit an adequate prior notice, the location where it
is being held, the date the article has arrived or will arrive at the
location, and the name of a contact individual at the location.
FDA eliminated from the interim final rule telephone and fax
numbers and e-mail addresses for most firms, entry line numbers, trade
or brand name, and consumption entry information (port of entry/
anticipated date of entry for Customs purposes). FDA revised
information requirements regarding the quantity, lot/code identifier,
manufacturer, grower, and carrier in the interim final rule. FDA added
mode of transportation and planned shipment information to the interim
final rule. In the interim final rule, registration numbers are
required only for manufacturer and shipper, if the shipper is a
facility that is required to be registered under section 415 of the
FD&C Act (21 U.S.C. 350d) and 21 CFR part 1, subpart H, for that
article of food. For clarity, the interim final rule segregates the
information required for food arriving by international mail (Sec.
1.281(b)) and also segregates the information required for food refused
under section 801(m) of the FD&C Act (Sec. 1.281(c)).
Table 1A, which appears later in this preamble, describes the
information required in prior notice.
G. ``What Must You Do If Information Changes After You Have Received
Confirmation of a Prior Notice From FDA?'' (Section 1.282 Proposed as
Sec. Sec. 1.289 to 1.294)
This provision has been revised in the interim final rule. The
proposed rule allowed one product identity amendment for certain
product identity information that was not known at the time of
submission and for arrival updates. Product identity amendments could
be submitted up to 2 hours before arrival at the border. Arrival
updates were required if the port of entry changed or if the time of
arrival was expected to be more than 3 hours later or 1 hour earlier
than the anticipated time of arrival.
The interim final rule does not provide for product identity
amendments or arrival updates. Because we reduced the timeframes for
submitting prior notice in the interim final rule to the least amount
of time that we need to meet our statutory responsibility to receive,
review, and respond to prior notice submissions, the interim final rule
does not provide for amendments or updates. The interim final rule
requires that if required information (except estimated quantity,
anticipated arrival information including the anticipated date of
mailing, and planned shipment information) changes after FDA has
confirmed prior notice for review, the prior notice should be cancelled
and a prior notice with the correct information must be submitted.
H. ``What Happens to Food That Is Imported or Offered for Import
Without Adequate Prior Notice?'' (Section 1.283 Proposed as Sec.
1.278)
FDA revised the proposed rule to provide for more specificity, to
clarify
[[Page 58979]]
the status of refused food, and to provide a mechanism for FDA review
after refusal. In the interim final rule, FDA identifies the
consequences and procedures for the following situations:
1. Inadequate Prior Notice (No, Inaccurate, or Untimely Prior Notice)
Unless immediately exported with CBP concurrence, an article of
food that is refused for inadequate prior notice shall be held in
accordance with Sec. 1.283.
2. Status and Movement of Refused Food
[sbull] A refused food is considered general order merchandise
under section 490(a) of the Tariff Act of 1930, as amended (19 U.S.C.
1490(a)).
[sbull] The refused food must be moved under an appropriate
custodial bond. FDA must be notified of the location where the food has
been or will be moved within 24 hours of refusal. If the food is held,
it must be taken directly to the designated location within 48 hours,
shall not be entered, and shall not be delivered to any importer,
owner, or ultimate consignee.
3. Segregation of Refused Foods
If a refused food is part of a shipment that contains other
articles, the refused food may be segregated from the rest of the
shipment within the port of arrival or at the hold location if
different.
4. Costs
Neither FDA nor CBP are liable for transportation, storage, or
other expenses resulting from refusal.
5. Export After Refusal
A refused food may be exported with CBP concurrence and supervision
(unless CBP or FDA has administratively detained or seized the article
under other authority).
6. No Post-Refusal Submission or Request for Review
If no prior notice submission or request for FDA review is
submitted in a timely fashion after a food is refused, the food will be
dealt with as set forth in CBP regulations relating to general order
merchandise. It may only be sold for export or destroyed as agreed to
by CBP and FDA.
7. Food Carried by or Otherwise Accompanying an Individual
For food that is not for personal use, if the article of food is
refused because prior notice is inadequate or the individual cannot
provide FDA or CBP with a copy of the PN confirmation, the article may
be held at the port or exported. If the individual cannot make
arrangements for holding or export, the food may be destroyed.
8. Post-Refusal Prior Notice Submissions
If an article of food is refused for no or inaccurate prior notice,
the prior notice must be submitted or corrected and resubmitted to FDA
and confirmed by FDA for review.
9. FDA Review After Refusal
After refusal, only the submitter, importer, owner, or ultimate
consignee may submit a written request asking FDA to review whether the
article is subject to the requirements of this subpart under Sec.
1.276(b)(5) and Sec. 1.277, or whether the prior notice submission is
accurate. The interim final rule also sets out procedures and
timeframes for the review process.
10. International Mail
In the case of food arriving by international mail, if prior notice
is inadequate or if the PN Confirmation Number is not affixed, the
article will be held by CBP for 72 hours for FDA inspection and
disposition. If refused and there is a return address, the parcel may
be returned to sender. If there is no return address or the food in the
shipment appears to present a hazard, FDA may dispose of or destroy the
parcel at its expense. If FDA does not respond within 72 hours of the
CBP hold, CBP may return the parcel back to the sender or, if there is
no return address, destroy the parcel, at FDA expense.
11. Prohibitions on Delivery and Transfer
A refused article of food may not be delivered outside of the port
where the article is held and may not be delivered to the importer,
owner, or ultimate consignee or transferred by any person from the port
or secure facility until FDA has examined the prior notice, determined
the adequacy of the prior notice, and notified CBP and the transmitter
that the article is no longer refused. After this notification by FDA
to CBP and transmitter, entry may be made in accordance with law and
regulation.
12. Relationship to Other Admissibility Provisions
A determination that an article of food is no longer subject to
refusal under section 801(m)(1) of the FD&C Act is different than, and
may come before, determinations of admissibility under other provisions
of the FD&C Act or other U.S. laws. A determination that an article of
food is no longer subject to refusal under section 801(m)(1) of the
FD&C Act does not mean that it will be granted admission under other
provisions of the FD&C Act or other U.S. laws.
I. What Are the Other Consequences of Failing to Submit Adequate Prior
Notice or Otherwise Failing to Comply With This Subpart? (Section 1.284
Proposed as Sec. 1.278)
The interim final rule provides that failure of a person who
imports or offers to import an article of food to submit prior notice
is a prohibited act under section 301(ee) of the FD&C Act (21 U.S.C.
331(ee)) and sets out the civil, criminal, and debarment actions that
the United States may bring against persons who are responsible for the
commission of a prohibited act.
J. What Happens to Food That Is Imported or Offered for Import From
Unregistered Facilities That Are Required to Register Under 21 CFR Part
1, Subpart H? (Section 1.285)
The interim final rule also sets out the consequences concerning
what happens at the border to food from facilities that are not
registered as required under section 415 of the FD&C Act and 21 CFR
part 1, subpart H. These are similar to provisions in the interim final
rule for dealing with food that is refused for inadequate prior notice.
Table 1A of this document shows the information required by
sections 1.281(a), (b), and (c). For clarity, the table also identifies
under what circumstances certain information is not required, e.g.,
registration numbers when the article of food is imported or offered
for import for transshipment, storage and export, or further
manipulation and export.
BILLING CODE 4160-01-P
[[Page 58980]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.074
BILLING CODE 4160-01-C
III. Comments on the Proposed Rule
FDA received approximately 470 timely responses containing one or
more comments in response to the proposed rule. To make it easier to
identify comments and responses to the comments, the word ``Comments''
will appear before the description of the comment, and the word
``Response'' will appear before our response. A summary follows which
includes a description of the appropriate section in the interim final
rule.
A. General Comments and Outreach
(Comments) Some comments suggest revision of section 307 of the
Bioterrorism Act. Other comments recommend that FDA repropose the rule
or not implement the rule.
(Response) Changes to the statute are beyond the scope of this
rulemaking. Postponing implementation of or not implementing the rule
is not viable under section 307(c) of the Bioterrorism Act, which not
only directs the FDA to ``promulgate proposed and final regulations for
the requirement of
[[Page 58981]]
providing notice in accordance with section 801(m)'' by December 12,
2003, but also provides that an 8 hour prior notice requirement takes
effect on this date even if FDA has not promulgated regulations that
are in effect by this deadline. However, we are publishing this rule as
an interim final rule and are, accordingly, soliciting comment on its
provisions.
(Comments) Most comments generally support the protections of the
food supply provided under the Bioterrorism Act. Although comments
recommend that the final rule be amended to reflect more accurately
industry practices, other comments suggest the regulation should be
strengthened to ensure that FDA has all of the information required to
identify foods that may pose a health or security threat. Some comments
argue that FDA already has access to information currently submitted to
CBP to allow for identification and quick interdiction of foods that
may pose a health or security threat. Other comments question how the
final rule would enhance FDA's ability to improve food safety and
whether the benefits outweigh the costs.
(Response) Through section 307 of the Bioterrorism Act, Congress
amended the FD&C Act to require the submission to FDA of a notice
providing information regarding food before its importation into the
United States. Congress also required FDA to issue implementing
regulations to be effective not later than December 12, 2003. Thus, a
postponement of the rule is not an option. Although FDA is aware that
the prior notice regulation will affect industry, Congress determined
the need for prior notice by passing the Bioterrorism Act. Prior notice
of imported food will give FDA better information about the food
earlier, enabling FDA to review and respond to the information before
the arrival of the food at the border. Prior notice also will give FDA
information with which it will be able to better focus its inspection
resources. Section V of this preamble, Analysis of Economic Impacts,
discusses the benefits of this interim final rule in detail. To address
many of the concerns raised by the comments, FDA has made significant
modifications in the interim final rule. However, we are publishing
this rule as an interim final rule and are, accordingly, soliciting
comment on its provisions.
(Comments) Some comments ask that FDA provide clear guidance and
training to industry and agency field personnel about the procedures
for implementing the regulation.
(Response) FDA conducted extensive outreach on the proposed prior
notice rule, including having relevant FDA staff attend 6 international
meetings and over 100 domestic meetings to ensure that affected parties
were aware of the Bioterrorism Act prior notice requirements. On
January 29, 2003, FDA held a public meeting (via satellite downlink) to
discuss both the registration and prior notice proposed rules (see 68
FR 1568, January 13, 2003) or http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.accessdata.fda.gov/scripts/oc/ohrms/advdisplay.cfm.
Nearly 1,000 participants in North and South
America and the Caribbean viewed that live broadcast. The meeting was
later re-broadcast to Europe, Asia, Africa, and the Pacific. FDA has
also posted transcripts of the broadcast in English, French, and
Spanish on the agency's Web site.
FDA plans similar outreach efforts directed to both domestic and
international stakeholders after publication of the interim final rule
implementing the registration and prior notice provisions of the
Bioterrorism Act. Outreach will include many methods of communication:
[sbull] Dissemination of materials to guide affected domestic and
international food facilities through the new processes established to
implement the registration and prior notice requirements;
[sbull] Domestic outreach meetings to State regulators and
industry;
[sbull] A satellite downlink video broadcast and a series of
videoconferences to various regions of the world;
[sbull] Materials and events for the media;
[sbull] International outreach to food trading partners;
[sbull] Presentations by FDA officials and exhibits at professional
and trade conferences and meetings to inform industry and state and
local government representatives of the new requirements; and
[sbull] Cooperative arrangements with CBP and other Federal
agencies to ensure that information on the interim final regulations
and their requirements is disseminated to affected companies and
individuals.
More specifics regarding each of these will be included in FDA's
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov. In addition, FDA also plans training in
new or revised procedures for its field personnel, as well as CBP field
personnel. FDA will also provide guidance on enforcement to its staff
containing the agency's policies on injunctions, prosecution, and
debarment related to failure to provide timely and accurate prior
notice, as well as the agency's policies regarding refusals under
section 801(m)(1) of the FD&C Act and holds under section 801(l). As
described in greater detail later, FDA intends to include a transition
period in this guidance, during which it will emphasize education to
achieve compliance. Guidance documents are available to the public, and
FDA will shortly publish a notice of availability in the Federal
Register.
FDA will notify the World Trade Organization (WTO) of this interim
final rule. Shortly after publication of this interim final rule, FDA
will begin disseminating at U.S. ports flyers and posters summarizing
the new requirements and informing representatives of affected entities
how to provide prior notice to FDA. Online assistance and a help desk
will be available when the interim final rule becomes effective.
B. Foreign Trade Issues
(Comments) Some comments questioned the consistency of the proposed
regulation with U.S. obligations under various WTO agreements, NAFTA,
and other international agreements.
(Response) FDA is aware of the international trade obligations of
the United States and has considered these obligations throughout the
rulemaking process for this regulation and the interim final regulation
is consistent with these international obligations.
(Comments) Some comments asserted that the proposed regulation is
burdensome, confusing, costly, disproportionate, discriminatory, and
will have a negative impact on foreign trade.
(Response) In drafting the proposed rule, FDA considered how best
to structure the proposed rule consistent with the statutory mandates
of the Bioterrorism Act and, at the same time, to reduce the costs
associated with compliance. As discussed in more detail in the
following paragraphs, FDA has carefully considered comments received
regarding the burden imposed by the proposed rule, including its
effects on international trade. Furthermore, based on the comments
received on the proposed requirements, FDA has made a number of
significant changes that minimize the impact of prior notice
requirements on the food industry. These changes include removing
restrictions on who can submit prior notice; allowing submission to be
made either through ABI/ACS (the existing mechanism for filing entry
information with CBP) or the FDA PN System Interface (the FDA PN Web
system described in the proposed rule); reducing the timeframes for
submission of prior notice and tying them to mode
[[Page 58982]]
of transport; and streamlining the information requirements.
C. ``What Definitions Apply to This Subpart?'' (Section 1.276 Proposed
as Sec. 1.277)
1. The Act (Sec. 1.276(a))
The proposed rule defined ``the act'' as the Federal Food, Drug,
and Cosmetic Act. The proposed rule also applies the definitions of
terms in section 201 of the act (21 U.S.C. 321) to such terms as used
in the proposed rule.
(Comments) FDA did not receive comments on the definition of ``the
act.''
(Response) We did not change the definition in the interim final
rule. We have clarified that the definitions in the FD&C Act do not
apply if a term is defined differently in the interim final rule.
(Interim final rule) Section 1.276(a) of the interim final rule
defines ``the act'' as the Federal Food, Drug, and Cosmetic Act.
Section 1.276(b) provides the definitions in the FD&C Act apply unless
a term is defined differently in the interim final rule.
2. Calendar Day (Sec. 1.276(b)(1))
The proposed rule defined ``calendar day'' as ``every day shown on
the calendar.''
(Comments) FDA did not receive comments on the definition of
``calendar day.''
(Response) We did not change the definition in the interim final
rule.
(Interim final rule) ``Calendar day'' is defined in Sec.
1.276(b)(1) of the interim final rule as ``every day shown on the
calendar.''
3. Country From Which the Article Originates (Sec. 1.276(b)(2))
Section 801(m)(1) of the FD&C Act requires that ``the country from
which the article originates'' be identified in a prior notice. The
proposed rule used the term ``originating country'' and defined it as
``the country from which the article of food originates.''
(Comments) Comments were received on the proposed definition of
``originating country.'' These comments are addressed under ``FDA
Country of Production,'' which is the term that FDA has chosen in the
interim final rule to replace ``originating country.''
(Response) The term ``the country from which the article
originates'' has been added to the interim final rule to refer back to
the statutory language.
(Interim final rule) ``Country from which the article originates''
is defined as ``FDA Country of Production.''
4. Country From Which the Article Is Shipped (Sec. 1.276(b)(3))
The proposed rule defined ``country from which the article of food
was shipped'' as ``the country in which the article of food was loaded
onto the conveyance that brings it to the United States.'' A conveyance
is the means of transportation, e.g., ship, truck, car, van, plane,
railcar, etc., not the shipping container that can be moved from a ship
to a truck to a train. FDA requested comment on whether the phrase
``country from which the article of food was shipped'' should include
the countries of intermediate destination.
(Comments) Several comments support identifying countries of
intermediate destination, noting that it would be desirable to have
this information to support product tracing. One states that even if a
food product were merely shipped through another country without
further manufacturing/processing, the potential for tampering would
still exist. This comment is concerned that, without information on
every intermediate country, FDA would lack the ability to trace food
for potential contamination back through the distribution chain.
Another comment supports providing the countries of intermediate
destination. It states that, except in the case of sealed containers,
the manufacturer cannot control manipulation that occurs in countries
of intermediate destination.
Several comments state that the information required in a prior
notice should not include countries of intermediate destination. Other
comments note that: An imported article may pass through a number of
ports or stops in a variety of countries and never be unloaded; a U.S.
importer in most cases has no control of which ports or stops a carrier
may make; and exporters cannot guarantee which ports the ship will
enter or pass through on its way to a U.S. port. Another comment states
the information would not be necessary for sealed containers because
alteration or absence of a seal alerts the owner to tampering, but it
may be necessary for bulk or unpackaged products. Most of the comments
that object conclude that submission of additional countries of
intermediate destination would be unreasonable and burdensome and would
not improve the safety and security of the food supply.
(Response) Section 801(m)(l) of the FD&C Act uses the singular
``country'' when it directs submission of the identity of the country
from which the article is shipped, not the plural ``countries.'' Thus,
FDA has concluded that the text of the statute dictates that the
definition be singular. The interim final rule thus retains the
proposed definition of the term ``country from which the article was
shipped.''
(Comments) One comment states that the proposed definition of
``country from which the article of food was shipped'' is clear and
suggests that it be maintained. Several commenters suggest that
``country from which the article of food was shipped'' should be
defined as the country from which the goods were ``exported'' to the
United States as that phrase is used in the CBP regulations defining
``country of export.''
Other comments suggest that FDA's definition failed to take into
account the following considerations: That ocean and air carriers
routinely use ``feeder'' vessels/aircraft to move cargo from the
country of origin to a ``gateway'' for transfer to a larger vessel or
aircraft that will transport the cargo to its final destination; and
that ocean vessels frequently discharge containers destined for the
United States in Canada where they are transferred to a motor carrier
for transport to the United States. The comments conclude that the
proposal, if implemented, would confuse importers and require them to
attempt to obtain the cargo routing from master carriers. They suggest
that FDA require instead the reporting of the last country in which a
product was stored if that is different from the country in which it
was produced (the country of production).
(Response) Section 801(m)(1) of the FD&C Act requires that prior
notice submissions identify ``the country from which the article is
shipped.'' ``Country of export'' is not a term formally defined in
CBP's regulations.
We acknowledge that food may pass through more than one country
before it reaches the United States. However, we do not believe that
this practice changes the definition dictated by the statutory
language. Several examples may be helpful. In one scenario, a shipper
in country A arranges for a food manufactured in country B to be
transported to the United States via country C. The food arrives in
country C on an ocean vessel and is transferred to a truck that brings
it to the U.S. port of arrival. In this first scenario, the country
from which the article is shipped is country C.
In a second scenario, a shipper in country A arranges for a food
manufactured in country B to be transported to the United States by a
ship that is loaded in country B but stops in country C and then
continues to the United States where the food is discharged. In this
second scenario, the country from which the article is
[[Page 58983]]
shipped is country B. In a third scenario, if the food was transferred
to a different vessel in country C, the country from which the article
is shipped is country C.
(Interim final rule) Section 1.276(b)(3) of the interim final rule
defines ``country from which the article is shipped'' as ``the country
in which the article of food is loaded onto the conveyance that brings
it to the United States.'' We changed the term from ``country from
which the article was shipped'' to ``country from which the article is
shipped'' to accurately reflect the language of the statute.
5. FDA Country of Production and Originating Country (Sec.
1.276(b)(4))
The proposed rule defined ``originating country'' as ``the country
from which the article of food originates,'' which means the country
where the article of food was grown and harvested, or if processed,
where the article of food was produced.
(Comments) Many comments regarding the definition of ``originating
country'' suggest that FDA use the ``country of origin'' definition
used by CBP, or the standard rules of origin used by CBP, USDA, and
associations such as the WTO.
(Response) Section 801(m)(1) of the FD&C Act requires prior notice
submissions to FDA identify ``the country from which the article
originates.''
We have not changed the definition of ``originating country'' to
align it with ``country of origin'' as that term is defined by CBP. CBP
defines ``country of origin'' at 19 CFR 134.1(b) as follows:
the country of manufacture, production, or growth of any article of
foreign origin entering the United States. Further work or material
added to an article in another country must effect a substantial
transformation in order to render such other country the ``country
of origin'' within the meaning of this part; however, for a good of
a NAFTA country, the NAFTA Marking Rules will determine country of
origin.
In rulings, CBP has further defined ``country of origin'' and
substantial transformation to identify the country of growth of the
main ingredient in a processed food rather than the country of
production of ``the article [of food]'' (emphasis added) in the form it
is being imported into the United States. For example, a CBP ruling
identified the country of origin as the United States where beans were
rehydrated and canned in the Dominican Republic, but grown and dried in
the United States (Ref. 1). For purposes of the prior notice provisions
of the FD&C Act, the ``article of food'' is canned beans, not dried
beans. From a food safety standpoint, FDA is most interested in knowing
where the article of food was processed and canned. We believe that it
best serves the language and the purposes of section 801(m)(l) of the
FD&C Act to define the term to focus on the country of production of
the specific article of food that is being shipped to the United
States. To avoid confusion between FDA's prior notice requirements and
CBP requirements, the interim final rule uses the term ``FDA Country of
Production'' instead of the term ``originating country'' or ``country
from which the article originates.'' ``FDA Country of Production'' is
already familiar to customs brokers and self-filers using ABI/ACS
interface with OASIS.
(Comments) One comment suggests that ``EU'' (European Union) be
acceptable for use as an originating country.
(Response) FDA disagrees. Section 801(m) of the FD&C Act requires
identification of ``the country from which the article originates''
(emphasis added). Accordingly, for purposes of this provision, each
sovereign country must be identified when declared as part of the prior
notice submission.
(Comments) Several comments suggest that the definition of
``country of origin'' for fish be the country in which the vessel is
flagged or in which the fish was last processed. Another comment asks
FDA to use the definition of ``country of origin'' being used by USDA's
Agricultural Marketing Service for fish and seafood.
(Response) We generally agree. The proposed rule relied in part on
USDA's proposed definition as set out in USDA guidance published in the
Federal Register on October 11, 2002, and is based on the Farm Security
and Rural Investment Act of 2002 (commonly known as the 2002 Farm
Bill), as amended. As set out in Sec. 1.276(b)(4) of the interim final
rule, if an article of food is wild fish that is still in its natural
state and was caught or harvested outside the waters of the United
States by a vessel that is not registered in the United States, the FDA
Country of Production is the country in which the vessel is registered.
If the article of food is made from wild fish aboard a vessel, the FDA
Country of Production is the country in which the vessel is registered.
(Comments) Several comments express concern that the proposed
definition, ``[o]riginating country means the country from which the
article of food originates,'' does not take into consideration the
producer, processor, vessel or common carrier feeder and consolidation
practices in which components of the shipment may be composites or
commingled from more than one country. One comment asks that FDA
describe when the country of canning would be the originating country,
and when it would not. One comment suggests that decaffeinating or
blending coffee be considered processing and that decaffeinated or
blended coffee be considered as processed food for the purposes of
prior notice.
(Response) Some of these comments appeared to confuse the proposed
definition of ``country from which the article of food was shipped''
with the proposed definition of ``originating country,'' another reason
why we decided to use the term ``FDA Country of Production.'' As
explained above in the discussion of ``the country from which the
article is shipped,'' the two countries will sometimes be different.
When determining which country is the FDA Country of Production, the
focus should be on the production of the specific article of food. For
example, if the article of food is raw, whole, unpeeled carrots, the
FDA Country of Production is the country where the carrots were grown
and harvested. If the article of food is raw peeled and chopped carrots
or canned carrots, the FDA Country of Production is the country where
the carrots were peeled and chopped or canned. As a general matter, for
canned foods, the FDA Country of Production should be the country where
food was canned. Similarly, we consider decaffeinated coffee to be no
longer in its natural state and the FDA Country of Production would be
the country in which the coffee was decaffeinated.
(Interim final rule) Section 1.276(b)(4) of the interim final rule
defines the ``FDA Country of Production'' for an article of food that
is in its natural state, as country where the article of food was
grown, including harvested or collected and readied for shipment to the
United States. If an article of food is wild fish, including seafood,
that was caught or harvested outside the waters of the United States by
a vessel that is not registered in the United States, the FDA Country
of Production is the country in which the vessel is registered. For an
article of food that is no longer in its natural state, the FDA country
of production is defined as the country where the article was made;
except that, if an article of food is made from wild fish, including
seafood, aboard a vessel, the FDA Country of Production is the country
in which the vessel is registered. If an article of food that is no
longer in its natural state was made in
[[Page 58984]]
a Territory, the FDA Country of Production is the United States.
6. Food (Sec. 1.276(b)(5))
The proposed rule defined ``food'' as having the meaning given in
section 201(f) of the FD&C Act. The proposed rule provided examples of
food including:
fruits, vegetables, fish, dairy products, eggs, raw agricultural
commodities for use as food or components of food, animal feed,
including pet food, food and feed ingredients and additives,
including substances that migrate into food from food packaging and
other articles that contact food, dietary supplements and dietary
ingredients; infant formula, beverages, including alcoholic
beverages and bottled water, live food animals (such as hogs and
elk), bakery goods, snack foods, candy, and canned foods.
a. Food packaging and other food contact substances.
(Comments) We received several comments on the subject of food
contact substances, including packaging. The comments ask that FDA
clarify the definition of ``food'' because the proposed rule included
as examples of food not only those items traditionally understood as
food, but also items that come into contact with and may migrate into
food during processing or packaging. In particular, the comments ask
that food packaging and components of food packaging, other food
contact articles (such as food processing equipment and components of
such equipment, glassware, dishware, cutlery, kitchen appliances), and
so-called indirect additives (including those applied to food contact
surfaces) be excluded from the final rule's definition of ``food.''
In support, the comments contend the legislative history of the
prior notice provisions establish that Congress did not intend to apply
prior notice requirements to these substances even though they can be
food within the meaning of section 201(f) of the FD&C Act. In addition,
some point to language in section 415 of the FD&C Act (21 U.S.C. 350d)
relating to registration and language in section 414(b) of the FD&C Act
relating to recordkeeping (21 U.S.C. 350c). Finally, some comments
argued that an overly broad definition of ``food'' would dilute the
government's resources, thereby hampering the government's opportunity
to achieve the protective goals of the Bioterrorism Act.
(Response) We expressly included food packaging and other food
contact materials in the proposed definition, with the result that
prior notice would have been required for food packaging and other food
contact materials and their components (see 68 FR 5428 at 5430). The
breadth of the proposed definition of ``food'' was based on both the
statutory definition in section 201(f)(3) of the FD&C Act, which
defines articles used as components of food as ``food,'' as well as the
case law interpreting the definition, including Natick Paperboard v.
Weinberger, 525 F.2d 1103 (1st Cir. 1975) (paperboard containing PCBs
intended for food use is adulterated food; U.S. v. Articles of food * *
* 688 Cases * * * of Pottery (Cathy Rose), 370 F. Supp. 371 (E.D. Mi.
1974) (ceramic pottery that leaches lead is adulterated food).
The comments on food contact substances raise the question of what
Congress intended ``food'' to mean for purposes of prior notice. In
construing the prior notice provision of the Bioterrorism Act, FDA is
confronted with two questions. First, has Congress directly spoken to
the precise question presented? (``Chevron step one'') Chevron, U.S.A.,
Inc. v. NRDC, Inc., 467 U.S. 837, 842 (1984). To find no ambiguity,
Congress must have clearly manifested its intention with respect to the
particular issue (Young v. Community Nutrition Institute, 476 U.S. 974,
980 (1986)). If Congress has spoken directly and plainly, the agency
must implement Congress's unambiguously expressed intent (Chevron, 467
U.S. at 842-843). If, however, the Bioterrorism Act is silent or
ambiguous as to the meaning of ``food,'' FDA may define ``food'' in a
reasonable fashion (``Chevron step two''); Chevron, 467 U.S. at 842-
843; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132
(2000)).
The agency has determined that, in enacting section 801(m) of the
FD&C Act, Congress did not speak directly and precisely to the meaning
of ``food.'' As noted, the FD&C Act has a definition of ``food'' at
section 201(f). It may be a reasonable assumption that, when the term
``food'' is used in the FD&C Act, section 201(f) applies. However,
although there may be ``a natural presumption that identical words used
in different parts of the same act are intended to have the same
meaning [citation omitted], * * * the presumption is not rigid * * *.''
(Atlantic Cleaners & Dyers, Inc. v. U.S., 286 U.S. 427, 433 (1932);
(accord: U.S. v. Cleveland Indians Baseball Co., 532 U.S. 200, 213
(2000)). Thus, the same word may be given different meanings, even in
the same statute, if Congress intended different interpretations or if
such different interpretations are reasonable (at step 2) (Atlantic
Cleaners & Dryers, Inc., supra).
Even before the Bioterrorism Act amendments, the term ``food'' was
not defined identically throughout the FD&C Act. For example, in
construing the parenthetical ``(other than food)'' in section
201(g)(1)(C) of the FD&C Act, the Seventh Circuit Court noted that
Congress meant to exclude only ``articles used by people in the
ordinary way that most people use food--primarily for taste, aroma, or
nutritive value'' and not all substances defined as food by section
201(f) (Nutrilab, Inc. v. Schweiker, 713 F.2d 335, 338 (7th Cir.
1983)). Similarly, section 409(h)(6) of the FD&C Act defines a ``food
contact substance'' as ``any substance intended for use as a component
of materials used in manufacturing, packing, packaging, transporting,
or holding food if such use is not intended to have any technical
effect in such food'' (emphasis added). This definition makes sense
only if ``food'' in this context excludes materials that contact food
because components of food contact materials are plainly intended to
have a technical effect in such materials.\2\
---------------------------------------------------------------------------
\2\ FDA's long-standing interpretation of the FD&C Act's
definition of color additive, section 201(t), is an additional
example of where ``food'' is used more narrowly than as defined in
section 201(f). A color additive is defined in section 201(t) of the
FD&C Act as a substance that ``when applied to a food * * * is
capable * * * of imparting color thereto * * *.'' The agency's food
additive regulations distinguish between color additives and
``colorants,'' the latter being used to impart color to a food-
contact material (21 CFR 178.3297(a); see also 21 CFR 70.3(f)).
Thus, ``food'' as it appears in the statutory definition of color
additive, necessarily excludes food contact materials.
---------------------------------------------------------------------------
Thus, in this larger statutory context, FDA has evaluated section
801(m) of the FD&C Act to determine whether the meaning of the word
``food'' is ambiguous. In conducting this Chevron step one analysis,
all of the traditional tools of statutory interpretation are available
to determine whether the language Congress used is ambiguous
(Pharmaceutical Research & Manufacturers of America v. Thompson, 251 F.
3d 219, 224 (D.C. Cir. 2001)). Beginning with the language of the
statute, in section 801(m) of the FD&C Act, ``food'' is used to
describe which subset of FDA-regulated articles are subject to prior
notice:
In the case of an article of food that is being imported or
offered for import into the United States, the Secretary, after
consultation with the Secretary of the Treasury, shall by regulation
require, for the purpose of enabling such article to be inspected at
ports of entry into the United States, the submission to the
Secretary of a notice * * * (emphasis added).
The Bioterrorism Act is silent as to the meaning of ``food.'' Congress
did not specify whether it intended the definition in section 201(f) of
the FD&C Act to apply, one of the other
[[Page 58985]]
possibilities noted above, or another meaning. Where, as here, the
statutory language on its face does not clearly establish Congress's
intent, it is appropriate to consider not only the particular statutory
language at issue, but also the language and design of the statute as a
whole (Martini v. Federal Nat'l Mortgage Association, 178 F. 3d 1336,
1345 (D.C. Cir. 1999), citing K Mart Corp. v. Cartier, Inc., 486 U.S.
281 (1988)). Indeed, the analysis should not be confined to the
specific provision in isolation, because the meaning or ambiguity of a
term may be evident only when considered in a larger context (FDA v.
Brown & Williamson Tobacco Corp., supra at 132 (2000)).
Consistent with this instruction, FDA has considered other parts of
the Bioterrorism Act in assessing whether the meaning of ``food'' in
section 801(m) of the FD&C Act ambiguous. In particular, FDA has
considered the language of section 415 of the FD&C Act. The
Bioterrorism Act's registration provision is one piece of several
enacted by Congress to enhance the safety of the U.S. food supply.
Registration is designed to work in concert with prior notice. This is
reflected in the Bioterrorism Act's amendment of section 801 of the
FD&C Act to provide that food from an unregistered foreign facility be
held at the port when imported or offered for import (section 801(l) of
the FD&C Act). The information provided by registration will allow FDA
to cross-check prior notice submissions against registration data to
confirm the identity of manufacturers and others who are required to
register. Furthermore, the information provided by prior notice
submissions can serve as a cross-check as to whether firms are
registered as required and have been providing the necessary updates.
As explained in the preamble to the interim final registration rule
published elsewhere in this issue of the Federal Register, FDA has
concluded that the meaning of the term ``food'' in section 415 of the
FD&C Act is ambiguous. First, the use, in section 415(a)(1) of the FD&C
Act, of the phrase ``for consumption'' after the word ``food'' creates
an ambiguity because it could be read to suggest that ``food'' within
the context of the section 415 registration requirement only refers to
food that is ordinarily thought of as ``consumed.'' By modifying the
term ``food,'' Congress apparently intended to limit the term ``food''
to something less than the broad definition in section 201(f) of the
FD&C Act. In addition, in section 415(b)(1) of the FD&C Act, when
defining ``facility'' for purposes of section 415, Congress expressly
exempted ``farms; restaurants; other retail food establishments;
nonprofit food establishments in which food is prepared for or served
directly to the consumer * * *.'' These exemptions do not make clear
whether Congress intended them to cover only food that is ordinarily
eaten at some point by consumers primarily for taste, aroma, or
nutritive value or whether, for example, a retail food establishment
could include retailers of food contact materials, such as retail
cookware stores.
The legislative history of section 415 of the FD&C Act also
supports the conclusion that Congress did not speak directly to the
meaning of ``food'' in that Bioterrorism Act provision. Such history is
appropriately consulted at Chevron step one (Atherton v. FDIC, 519 U.S.
213, 228-29 (1997)). In particular, the Conf. Rept. to H.R. 3448, which
became the Bioterrorism Act, explains what Congress intended by
``retail food establishments,'' which is used to create an exemption
from registration.
The Managers intend that, for the purposes of this section, the
term 'retail food establishments' includes establishments that
store, prepare, package, serve, or otherwise provide articles of
food directly to the retail consumer for human consumption, such as
grocery stores, convenience stores, cafeterias, lunch rooms, food
stands, saloons, taverns, bars, lounges, catering or vending
facilities, or other similar establishments that provide food
directly to a retail consumer.
(H. Conf. Rept. No. 481, 107th Cong., 2d Sess., 133 (2002)). Similarly,
the Conf. Rept. notes that the term ``non-profit food establishments''
includes not-for-profit establishments in which food is prepared for,
or served directly to the consumer, such as food banks, soup kitchens,
homebound food delivery services, or other similar charitable
organizations that provide food or meals for human consumption'' (Id.
at 133-34). Notably, the examples provided by Congress for both types
of exempt food establishments are not those that generally sell or
distribute food contact materials. Accordingly, the legislative history
of section 415 of the FD&C Act creates additional ambiguity as to the
meaning of ``food.''
This ambiguity in the word ``food'' is further underscored by the
legislative history of section 801(m) of the FD&C Act. For example, the
Conf. Rept. states that the prior notice provision is to be construed
not to apply to ``packaging materials if, at the time of importation,
such materials will not be used for or in contact with food * * *''
(see H. Conf. Rept. No. 481, 107th Cong., 2d Sess., 136 (2002)). This
statement implies that Congress was not relying on the definition of
food in section 201(f) of the FD&C Act. For example, the statement
could be read to mean that the term ``food'' does not include packaging
or other materials that contact food.
Having concluded that the meaning of ``food'' in section 801(m) of
the FD&C Act is ambiguous, FDA has considered how to define the term to
achieve a ``permissible construction'' of the prior notice provision
(Chevron, USA, Inc. v. NRDC, Inc., supra at 843). In conducting this
Chevron step two analysis, the agency has considered the same
information evaluated at step one of the analysis (Bell Atlantic
Telephone Co. v. FCC, 131 F. 3d 1044, 1049 (D.C. Cir. 1997); Chevron
U.S.A., Inc. v. FERC, 193 F. Supp. 2d 54, 68 (D.D.C. 2002)). FDA has
determined that it is permissible, for purposes of the prior notice
provision, to exclude food contact materials from the definition of
``food.''
Restricting ``food'' to substances other than food contact
materials is consistent with the legislative history of the prior
notice provision relating to food packaging and other food contact
substances. In addition, it is consistent with the ``food for
consumption'' language in section 415(a)(1) (FD&C Act) of the
registration provision. That is, foods that are ``consumed'' are
generally those eaten for their taste, aroma, or nutritive value. In
addition, excluding food contact materials from ``food'' in this
regulation is consistent with the exemptions in section 415(b)(1) of
the FD&C Act, as well as the legislative history of section 415.
As discussed in the following paragraphs in responses to other
comments, FDA has also interpreted ``food'' for purposes of section
801(m) of the FD&C Act to exclude pesticides as that term is defined
under 7 U.S.C. 136(u). Accordingly, FDA has determined that a
reasonable interpretation of ``food'' for purposes of section 801(m) of
the FD&C Act is as follows and has revised Sec. 1.276(b)(5) of this
interim final rule to provide:
Food has the meaning given in section 201(f) of the act, except
for purposes of this subpart, it does not include food contact
substances as defined in section 409(h)(6) of the act (21 U.S.C.
348(h)(6)); or pesticides as defined in 7 U.S.C. 136(u). Examples of
food include fruits, vegetables, fish (including seafood), dairy
products, eggs, raw agricultural commodities for use as food or as
components of food, animal feed (including pet food), food and feed
ingredients, food and feed additives, dietary supplements and
dietary ingredients, infant formula, beverages (including alcoholic
beverages and bottled water), live food animals, bakery goods, snack
foods, candy, and canned foods.
[[Page 58986]]
Importantly, FDA still considers food packaging and other food
contact substances to be ``food'' within the meaning of section 201(f)
of the FD&C Act when they, or their components, migrate into other
food. Therefore, these items are still ``food'' for purposes of the
other provisions of section 801 of the FD&C Act (with the exception of
section 801(l), which shares the same definition of food as section
801(m)). Accordingly, although not subject to the section 801(m) of the
FD&C Act requirement of prior notice, food packaging materials and
other food contact substances will remain, as they have been, subject
to determinations of admissibility under section 801(a) of the FD&C
Act.
b. Food processing aids. (Comments) One comment argues that food
processing aids and ``indirect food additives'' should not be
considered food for purposes of section 801(m) of the FD&C Act.
According to the commenter, these substances resemble food contact
substances, which Congress, as evidenced by the prior notice
legislative history of food contact substances, did not expect FDA to
subject to prior notice.
(Response) Whether a food processing aid or ``indirect additive''
is subject to prior notice depends upon whether such a substance is
``food'' under this rule. As noted, for purposes of the interim final
rule, ``food'' excludes ``food contact substances'' as defined at
section 409(h)(6) of the FD&C Act. Among other things, unlike food
processing aids and ``indirect additives,'' ``food contact substances''
are not ``intended to have any technical effect in food,'' section
4091(h)(6) of the FD&C Act. In addition, ``food'' excludes pesticides
as defined at 7 U.S.C. 136(u). Thus, if the substance is not a
pesticide and is intended to have a technical effect in the food being
processed, the substance is not exempt from the definition of ``food''
under Sec. 1.276(b)(5) in the interim final rule. This is a reasonable
result in that such processing aids are intentionally and directly
added to ``traditional'' foods.
c. Antimicrobial pesticides. (Comments) One comment expresses
concern about including antimicrobial pesticides within the scope of
this regulation. The comment states that pesticides are imported
pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), not the FD&C Act, and are subject to Environmental Protection
Agency (EPA) approval before they are admitted to the United States.
The comment asks that FDA clarify that this regulation is not
applicable to antimicrobial pesticides with FDA and/or EPA approved
food contact uses. The comment states that including antimicrobial
pesticides within the scope of this regulation would impose unnecessary
burdens on antimicrobial pesticide registrants, without enhancing the
protection of the food supply.
(Response) As discussed previously, the meaning of ``food'' in
section 801(m) of the FD&C Act is ambiguous. Therefore, FDA may define
``food'' in a reasonable manner. FDA believes that excluding pesticides
from the definition of food is reasonable. Pesticides, including those
used in or on food for human or animal use, are comprehensively
regulated by the Federal Government. Under FIFRA, 7 U.S.C. 136 et seq.,
all pesticides (both food and nonfood use) are registered with EPA. As
part of the registration process, establishments in which pesticides
are produced must register with EPA (40 CFR 167.3 and 167.20). As part
of the importation process, prior notice of pesticide shipments must be
provided to EPA (19 CFR 12.112).
Importantly, the Federal regulatory scheme for pesticides was
substantially revised in 1996 by the Food Quality Protection Act (FQPA)
(Pub. L. 104-170), and EPA's authority over pesticides was consolidated
and expanded. As a result of FQPA, pesticides and their residues are
subject to substantial and comprehensive regulation by EPA. Where
another Federal agency has the types of specific and comprehensive
authority described previously to regulate the safety of a substance,
FDA believes that it is appropriate to interpret ``food'' in section
801(m) of the FD&C Act as not including that substance. Accordingly,
FDA has revised the definition of ``food'' in Sec. 1.276(b)(5) to
exclude pesticides as defined by FIFRA.
d. Chemicals (Comments) One comment seeks clarification as to
whether chemicals are considered ``food.'' The comment expects that
chemicals intended for human consumption will likely be included in the
requirements for prior notice.
(Response) We are not sure exactly what substances or products the
comment refers to; ``chemicals'' is a very broad term. Unless excluded
because they are food contact substances or pesticides, chemicals that
are ``used for food or drink'' or are ``used for components of any such
articles'' are ``food'' under section 201(f) of the FD&C Act and the
definition in the interim final rule (Sec. 1.276(b)(5)). If the
substance is used in some applications that make the substance ``food''
and some that do not, the principles applicable to further processing
and multi-use substances, set out in the following paragraphs, apply.
e. Live animals. (Comments) Two comments address inclusion of live
animals. One comment urges FDA to exempt live food animals from this
regulation, as it will have far-reaching impacts on all Canadian
farmers who export live food animals to the United States. The other
comment asks for clarification as to how prior notice applies to live
food animals imported for further processing, such as finishing.
(Response) As discussed previously, the meaning of ``food'' in
section 801(m) of the FD&C Act is ambiguous. Therefore, FDA may define
``food'' in a reasonable manner. FDA believes that it is reasonable to
interpret ``food'' in section 801(m) of the FD&C Act to include live
animals. Such inclusion is consistent with the explicit reference to
animals in the statutory standard, ``serious adverse health
consequences or death to humans or animals'' in section
801(m)(2)(B)(ii) of the FD&C Act--the provision that relates to FDA
review of prior notices submitted for food refused for lack of adequate
prior notice. In addition, it is consistent with the legislative
history of section 801(m) of the FD&C Act that refers only to the
exclusion of food contact substances. Moreover, the products of live
food animals are an integral part of the food consumed in the United
States, and thus, it is logical to protect the raw materials (i.e., the
live animals) by including them under the Bioterrorism Act's
safeguards. Finally, the inclusion of live animals in the definition of
``food'' is consistent with the reasonable interpretation of the
registration provision, section 415 of the FD&C Act. Accordingly, the
interim final rule's definition of ``food'' includes live food animals.
Defining ``food'' to include live animals is also consistent with the
case law interpreting the term ``food'' in the broader context of the
FD&C Act. See United States v. Tuente Livestock, 888 F. Supp. 1416
(S.D. Ohio, 1995).
f. Articles for further processing or capable of multiple uses.
(Comments) Some comments ask that FDA clarify that the definition of
``food'' does not include substances that are not edible, but may be
further processed to be rendered edible, for example, crude vegetable
oils, crude petroleum, and minerals such as phosphates which may be
refined and processed into food ingredients such as glycerin and
phosphoric acid. The comments state that where bulk commodities have
potential food and nonfood uses, there should be an exemption from
import notification where these commodities have not been sufficiently
refined to be
[[Page 58987]]
directly used as food ingredients without further processing or
refining.
Another comment notes that gelatin is used for food,
pharmaceutical, and technical applications and seeks assistance with
establishing a labeling protocol to distinguish between edible gelatin,
pharmaceutical gelatin, and technical gelatin. Some comments state FDA
should require prior notice only for food intended for consumption and
ask FDA to specify the articles that would be considered ``food.'' The
comments also state that some imports have both food and nonfood uses
and that prior notice should only be required for imports that will be
used as a food. In addition, one comment strongly urges FDA to remove
indirect food contact colors (i.e., material used to color food contact
material) from the requirements of prior notice. The comment indicates
that food contact colors are often prepared in bulk and then shipped to
companies that can use these pigments in both food and nonfood
applications. The process of manufacturing color pigments could be many
steps removed from the process of actually using these products in food
packaging. Therefore, the decision to use the product in food may not
be made until after the pigment has entered commerce.
(Response) For purposes of the interim final rule, ``food'' has the
definition in section 201(f) of the FD&C Act except that ``food contact
substances'' as defined at section 409(h)(6) of the FD&C Act and
``pesticides'' as defined at 7 U.S.C. 136(u) are excluded from
``food.'' Under section 201(f) of the FD&C Act, ``food'' means
``articles used for food or drink'' (section 201(f)(1)) and articles
``used for components of any such article'' (section 201(f)(3)). The
determination of whether a substance is ``food'' is not a question of
intended use (Nutrilab v. Schweiker, 713 F.2d. 335, 337 (7th Cir.
1983); U.S. v. 52 Drums Maple Syrup, 110 F.2d 914, 915 (2d Cir. 1940);
U.S. v. Technical Egg Products, 171 F.Supp. 326, 328 (N.D. Ga. 1959)).
Courts interpreting the ``food'' definition in the FD&C Act have held
that articles at both ends of the food continuum are ``food'' for
purposes of the FD&C Act (U.S. v. O.F. Bayer & Co., 188 F.2d 555 (2d.
Cir. 1951); U.S. v. Tuente Livestock, 888 F. Supp. 1416 (S.D. Ohio,
1995) (live animals for food use are ``food'' under the FD&C Act); U.S.
v. Technical Egg Products, supra, 171 F.Supp. at 328 (rotten eggs are
``food'')). Thus, FDA believes that an item may be food even if the
food is not yet in the form in which it will be used for food. FDA will
consider a product as one that will be used for food if any of the
persons involved in importing or offering the product for import (e.g.,
submitter, transmitter, manufacturer, grower, shipper, importer, owner,
or ultimate consignee) reasonably believes that the substance is
reasonably expected to be directed to a food use.
If the substance can be used in some applications that make the
substance ``food'' and some that do not, the same principles apply.
With respect to gelatin and other substances that may exist in multiple
grades, including food grade, FDA will consider an article one that
will be used for food if any of the persons involved in importing or
offering the product for import (e.g., submitter, transmitter,
manufacturer, grower, shipper, importer, owner, or ultimate consignee)
reasonably believes that the substance is reasonably expected to be
directed to a food use.
Finally, as set forth previously, the interim final rule excludes
food contact substances from the definition of ``food.'' Thus, when
substances to color food contact substances or their components are
imported, they are not subject to prior notice. However, colors used in
such substances are still subject to regulation as food under section
201(f) of the FD&C Act for purposes of other provisions of the FD&C
Act.
(Interim final rule) In the interim final rule (Sec. 1.276(b)(5)),
``food'' has the meaning given in section 201(f) of the FD&C Act,
except for purposes of this rule, it does not include ``food contact
substances'' as defined in section 409(h)(6) of the act (21 U.S.C.
348(h)(6)) or ``pesticides'' as defined in 7 U.S.C. 136(u). Examples of
food include fruits, vegetables, fish (including seafood), dairy
products, eggs, raw agricultural commodities for use as food or as
components of food, animal feed (including pet food), food and feed
ingredients, food and feed additives, dietary supplements and dietary
ingredients, infant formula, beverages (including alcoholic beverages
and bottled water), live food animals, bakery goods, snack foods,
candy, and canned foods.
7. Grower (Sec. 1.276(b)(6))
Although the statute and proposed rule used the term grower, the
proposed rule did not define the term. However, FDA solicited comments
on whether the term ``grower'' includes a harvester or collector of
wild products, e.g., some fish and botanicals.
(Comments) A comment states that although harvesters or collectors
of wild botanicals do not grow botanicals and should be differentiated
from growers for certain purposes, these can be included in the term
``grower'' consistent with the congressional intent in Sec. 307 of the
Bioterrorism Act to identify the direct source of the agricultural raw
commodity.
(Response and interim final rule) FDA agrees. Accordingly, we have
defined ``grower'' to mean a person who engages in growing and
harvesting or collecting crops (including botanicals), raising animals
(including fish, which includes seafood), or both.
8. International Mail (Sec. 1.276(b)(6))
Although the proposed rule applied to food imported or offered for
import by mail, see, e.g., 68 FR 5436, the proposed rule did not define
``international mail.''
(Comments) There were no comments received concerning any
definition of ``international mail.''
(Response and interim final rule) The interim final rule imposes
slightly different requirements relating to prior notice for food
arriving by international mail. Thus, FDA determined that a definition
of ``international mail'' would be helpful. The interim final rule
defines ``international mail'' to mean ``foreign national mail
services.'' It also expressly excludes express carriers, express
consignment operators, or other private delivery services from this
definition.
9. No Longer In Its Natural State (Sec. 1.276(b)(8))
Section 801(m)(1) of the FD&C Act requires that the identity of the
manufacturer be submitted as part of a prior notice. However, the
proposed rule did not define ``manufacturer'' or address what
constituted the product of a manufacturer versus the product of a
grower.
(Comments) Comments raised questions concerning when a manufacturer
must be identified for an article of food.
(Response) These comments are discussed under the heading ``What
Information Must be in a Prior Notice.'' However, as a result of the
comments, we determined that a definition of when food would be ``no
longer in its natural state'' would be helpful to clarify when the
identity of a manufacturer versus the identity of a grower must be
provided in a prior notice.
(Interim final rule) The interim final rule (Sec. 1.276(b)(8)),
defines the term ``no longer in its natural state'' to mean that an
article of food has been made from one or more ingredients or
synthesized, prepared, treated, modified, or manipulated. Examples of
activities that render food no longer in its natural state are cutting,
peeling, trimming, washing, waxing, eviscerating, rendering, cooking,
baking, freezing, cooling,
[[Page 58988]]
pasteurizing, homogenizing, mixing, formulating, bottling, milling,
grinding, extracting juice, distilling, labeling, or packaging.
However, crops that have been cleaned (e.g., dusted, washed), trimmed,
or cooled attendant to harvest or collection or treated against pests,
waxed, or polished are still in their natural state for purposes of the
prior notice interim final rule. Likewise, whole fish headed,
eviscerated, or frozen attendant to harvest are still in their natural
state for purposes of the prior notice interim final rule.
10. Port of Arrival (Sec. 1.276(b)(9)) and Port of Entry (Sec.
1.276(b)(10))
The proposed rule defined ``port of entry'' as ``the water, air, or
land port at which the article of food is imported or offered for
import into the United States, i.e., the port where food first arrives
in the United States.''
(Comments) Many comments suggest harmonizing with, or adopting, the
CBP definition for ``port of entry.'' In the opinion of two comments,
the CBP definition is consistent with congressional intent and the FDA
departure from the CBP definition is unsupported. Many of these
comments state the two definitions would cause confusion in the import
community and could delay proper prior notice. Other comments suggest
changing the FDA definition of ``port of entry'' to the ``port of
arrival.'' Another comment suggests defining ``port of entry'' as the
entering point of a country where the merchandise is checked by
official authorities. Two comments state that defining ``port of
entry'' as the port of arrival would change business practices by
essentially stopping the use of CBP ``in-transit'' (i.e., IT) entries
under bond to inland ports.
(Response) Section 801(m)(2)(A) of the FD&C Act states that FDA's
implementing regulations must require that the notice ``be provided by
a specified period of time in advance of importation of the article
involved * * *.'' The stated purpose of section 801(m)(1) is ``enabling
[articles of food] to be inspected at ports of entry into the United
States * * *.'' Moreover, the overall purpose of the Bioterrorism Act
is ``[t]o improve the ability of the United States to prevent, prepare
for, and respond to bioterrorism and other public health emergencies.''
(Pub. L. 107-188.) The ability to examine or, if necessary, hold a
suspect article of food when it first arrives at a port of entry in the
United States, rather than later at the port where CBP will process the
entry, will most effectively serve this overall purpose. Thus, to
ensure that there is clarity that prior notice must be provided in
advance of arrival, we are defining the term ``port of arrival'' as the
water, air, or land port at which the article of food is imported or
offered for import into the United States, i.e., the port where the
article of food first arrives in the United States.
In addition, we are adopting the CBP definition of ``port of
entry'' to allow flexibility when designating where refused merchandise
will be held. The CBP ``Port of entry'' definition states:
The terms ``port'' and ``port of entry'' refer to any place
designated by Executive order of the President, by order of the
Secretary of the Treasury, or by Act of Congress, at which a Customs
officer is authorized to accept entries of merchandise to collect
duties, and to enforce the various provisions of the Customs and
navigation laws. The terms ``port'' and ``port of entry'' incorporate
the geographical area under the jurisdiction of a port director. (The
Customs ports in the Virgin Islands, although under the jurisdiction of
the Secretary of the Treasury, have their own Customs laws (48 U.S.C.
1406(i)). These ports, therefore, are outside the Customs territory of
the United States and the ports thereof are not ``port of entry''
within the meaning of these regulations) (19 CFR 101.1).
This flexibility will ensure that food that has been refused may
move to the port of destination where, for example the consumption or
warehouse entry will be filed, unless directed by CBP or FDA.
Generally, we do not intend to hold shipments at the border unless our
assessment of the situation leads us to believe it is warranted, e.g.,
the food may present a serious risk to public health or that the prior
notice violation is egregious. We intend to implement prior notice,
both in terms of determining what warrants a refusal in the first
place, and in terms of determining which shipments may move to the port
of destination, in a risk-based way.
(Comments) Other comments state rail transportation would be
especially affected because inbound trains often are not required to
stop at the U.S. border but proceed to inland terminals.
(Response) As explained later, rail shipments that have been
refused admission per section 801(m)(1) of the FD&C Act are considered
to have the status of general order merchandise. In many cases, it will
be operationally difficult to stop an entire train because an article
of food on it has been refused admission because of inadequate prior
notice. Under CBP regulation, general order merchandise may be stored
by the carrier or as the CBP port director may direct (see 19 CFR
123.10(f)). Moreover, in situations involving shipments by rail, FDA
and CBP have the discretion to allow the movement of the cargo from the
border crossing to the nearest point where it can be safely and
securely held. We intend, whenever possible, to examine articles of
food arriving by rail at the appropriate examination site closest to
the border. However, if the shipment might pose an immediate danger to
public health and safety, an article of food arriving by train may be
held at the border pending resolution of the situation.
(Interim final rule) The interim final rule, Sec. 1.276(b)(9)
defines ``port of arrival'' as ``the water, air, or land port at which
the article of food is imported or offered for import into the United
States, i.e., the port where the article of food first arrives in the
United States,'' (Sec. 1.276(b)(9)). This port may be different from
the port where consumption or warehouse entry or FTZ admission
documentation is presented to CBP. The interim final rule (Sec.
1.285(b)(10)) also defines port of entry as follows:
11. Registration Number (Sec. 1.276(b)(11))
Although the term appears in several places in the proposed rule,
the term ``registration number'' was not defined.
(Comments) No comments addressed the definition or meaning of
``registration number.''
(Response) To clarify that the term refers to registration of food
facilities, the interim final rule defines ``registration number'' as
the registration number assigned by FDA under section 415 of the FD&C
Act and 21 CFR part 1, subpart H, Sec. 1.276(b)(11). Specific comments
addressing when a registration number is required and other aspects of
providing registration numbers as information submitted in prior notice
are addressed later in this preamble--see ``What Information Must be in
a Prior Notice?'.
12. Shipper (Sec. 1.276(b)(12))
Section 801(m)(1) of the FD&C Act requires that the ``shipper of
the article'' be provided in a prior notice submission. The proposed
rule included the shipper as required information in a prior notice,
but did not define the term ``shipper.''
(Comments) FDA received no comments concerning the meaning of this
term.
(Response) In the proposed rule, we described the ``shipper'' as
``the person who arranges for a shipment to get to its first
destination in the United States * * *. The shipper is usually a
foreign firm that is located or maintains an address in the country
from which the
[[Page 58989]]
article was shipped.'' (68 FR 5437). However, in drafting the interim
final rule, we have realized that this description was not written in a
way that was useful in identifying the shipper in the case of food
imported by international mail. Accordingly, we have revised the
description of the ``shipper'' and included it in the definitions to
make it easier to find.
The definition is based on the description of ``shipper'' used by
CBP in their proposed rule, ``Required Advance Electronic Presentation
of Cargo Information,'' published in the Federal Register on July 23,
2003 (68 FR 43574 at 43577), which is similar to, but clearer than, the
description we used in the preamble to the proposed prior notice rule.
(Interim final rule) The interim final rule (Sec. 1.276(b)(12)),
defines ``shipper'' as ``the owner or exporter of the article of food
who consigns and ships the article from a foreign country or the person
who sends an article of food by international mail to the United
States.''
13. United States (Sec. 1.267(b)(13))
Although the term appears in several places in section 801(m) of
the FD&C Act itself, the proposed rule did not contain a definition of
``United States.''
(Comments) A comment seeks clarification whether the prior notice
regulation applies to food imported into Guam, the U.S. Virgin Islands,
the Northern Mariana Islands, and other U.S. Territories.
(Response) This comment raises the question of what the term
``United States'' means for purposes of section 801(m) of the FD&C Act.
In construing the prior notice provision of the Bioterrorism Act, FDA
is confronted with two questions. First, has Congress directly spoken
to the precise question presented? (``Chevron step one'') (Chevron,
U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842 (1984)). To find no
ambiguity, Congress must have clearly manifested its intention with
respect to the particular issue (Young v. Community Nutrition
Institute, 476 U.S. 974, 980 (1986)). If Congress has spoken directly
and plainly, the agency must implement Congress's unambiguously
expressed intent (Chevron, 467 U.S. at 842-843). If, however, the
Bioterrorism Act is silent or ambiguous as to the meaning of ``United
States,'' FDA may define ``United States'' in a reasonable fashion
(``Chevron step two''); (Chevron, 467 U.S. at 842-843; FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)). The agency has
determined that, in enacting section 801(m) of the FD&C Act, Congress
did not speak directly and precisely to the meaning of ``United
States.''
The FD&C Act does apply to Guam, the U.S. Virgin Islands, the
Northern Mariana Islands, and other U.S. Territories. Section 201(a)(1)
of the FD&C Act (21 U.S.C. 321 (a)(1)) defines the term ``State'' to
mean any State or Territory of the United States, the District of
Columbia, and the Commonwealth of Puerto Rico. The term ``Territory''
is defined to mean any Territory or possession of the United States,
including the District of Columbia, and excluding the Commonwealth of
Puerto Rico and the Canal Zone, section 201(a)(2) of the FD&C Act (21
U.S.C. 321(a)(2)). However, the terms ``State'' and ``Territory'' are
not used in section 801(m) of the FD&C Act.\3\ Instead, section 801(m)
of the FD&C Act deals with ``articles imported or offered for import
into the United States,'' (section 801(m)(1)).
---------------------------------------------------------------------------
\3\ The terms ``State'' and ``Territory'' are key to the FD&C
Act's definition of ``interstate commerce,'' which is, in turn, key
to many of the FD&C Act's general inspection and enforcement
provisions, see, e.g., sections 301, 304, and 704 (21 U.S.C. 331,
334, and 374). However, while articles that ``are imported or
offered for import into the United States,'' section 801(m)(1) of
the FD&C Act, are in ``interstate commerce,'' see, e.g., U.S. v.
2,998 Cases * * * First Phoenix Group, Ltd, 64 F.3d 984 (5th Cir.
1995), the term ``interstate commerce'' does not appear in section
801(m).
---------------------------------------------------------------------------
The term ``United States'' is not defined in the FD&C Act's general
definitions in section 201. Nor is it defined in section 801(m) of the
FD&C Act. It is defined for purposes of section 702(a) of the FD&C Act
(21 U.S.C. 372(a)), which provides:
In the case of a food packed in the Commonwealth of Puerto Rico
or a Territory [FDA] shall attempt to make inspection of such food
at the first point of entry within the United States * * *. For the
purposes of this subsection, the term 'United States' means the
States and the District of Columbia.
This definition in section 702(b) seems to imply that, in other places
in the FD&C Act, the term ``United States'' would include all
Territories. However, in section 801(m) of the FD&C Act, the term
``United States'' appears as part of the phrase ``for purposes of
enabling inspection of such [food] articles at the ports of entry into
the United States'' (emphasis added). As defined by CBP, ``port of
entry'' means ports within the part of the United States that has been
denominated as the ``Customs territory of the United States.'' (19 CFR
101.1 and 101.3). Notably, though, the Territories are not considered
part of the Customs territory of the United States. CBP defines
``Customs territory of the United States'' to ``include[] only the
States, the District of Columbia, and Puerto Rico.'' (19 CFR 101.1).
Because of this reference to ``the ports of entry into the United
States,'' FDA has concluded that the term ``United States'' is best
interpreted in section 801(m) of the FD&C Act to be the Customs
territory of the United States and include only the 50 States, the
District of Columbia, and Puerto Rico, but not the U.S. Territories and
possessions. Defining the ``United States'' to be the Customs territory
of the United States will maximize FDA's ability to coordinate prior
notice with the CBP entry process, as CBP entry is made for articles
from the Territories when they arrive in the Customs territory of the
United States. Thus, section 801(m) of the FD&C Act does not apply to
articles of food imported or offered for import into Guam, the U.S.
Virgin Islands, the Northern Mariana Islands, and other U.S.
Territories; section 801(m) does apply, however, when articles of food
are imported or offered for import from the Territories into the United
States as defined by Sec. 1.276(b)(11) of the interim final rule.
(Interim final rule) The interim final rule (Sec. 1.276(b)(13)),
defines ``United States'' to mean the Customs territory of the United
States, i.e., the 50 States, the District of Columbia, and the
Commonwealth of Puerto Rico, but not any other part of the United
States.
14. You (Sec. 1.276(b)(14))
The proposed rule defined ``you,'' based on who was authorized to
submit prior notice, as ``the purchaser or importer of an article of
food who resides or maintains a place of business in the United States,
or an agent who resides or maintains a place of business in the United
States acting on the behalf of the U.S. purchaser or importer or the
arriving carrier * * *'' or, if known, the in-bond carrier.
(Comments) No comments were received concerning the definition of
``you.'' However, comments were received about who may submit prior
notice.
(Response) Discussion of those comments and our responses are found
in the section ``Who is Authorized to Submit Prior Notice?'' FDA
decided, based on revisions to who may submit prior notice, to revise
the definition of ``you.'' The interim final rule clarifies that
``you'' means the persons (i.e., individuals and firms) submitting or
transmitting the prior notice. The submitter is responsible for the
prior notice. The persons who send the prior notice are transmitters.
If the submitter sends the prior notice, he or she is both
[[Page 58990]]
the submitter and transmitter. FDA notes that all messages sent via the
FDA PN System Interface will be sent to the transmitter. If prior
notice is submitted via ABI/ACS, all messaging goes to the customs
broker or self-filer via ABI/ACS.
(Interim final rule) The interim final rule (Sec. 1.276(b)(14)),
defines ``you'' as the person submitting the prior notice (the
``submitter'') or the person transmitting prior notice information on
behalf of the submitter (the ``transmitter'').
13. Summary of the Interim Final Rule
The interim final rule defines the following terms:
[sbull] The act;
[sbull] Calendar day;
[sbull] Country from which the article originates;
[sbull] Country from which the article is shipped;
[sbull] FDA Country of Production;
[sbull] Food;
[sbull] Grower;
[sbull] International mail;
[sbull] No Longer in Its Natural State;
[sbull] Port of arrival;
[sbull] Port of entry;
[sbull] Registration Number;
[sbull] Shipper;
[sbull] United States; and
[sbull] You.
D. ``What Is the Scope of This Subpart?'' (Section 1.277 Proposed as
Sec. 1.276)
FDA proposed that the prior notice requirements apply to food for
humans and other animals that is imported or offered for import into
the United States. The proposed rule specified that this included food
that is imported or offered for import into U.S. FTZs, for consumption,
storage, immediate export from the port of entry, transshipment through
the United States to another country, or import for export. The
proposed rule said that prior notice did not apply to food carried by
an individual in that individual's personal baggage for that
individual's personal use, meat food products, poultry products, and
egg products that are subject to the exclusive jurisdiction of USDA.
(Comments) Some comments state that the prior notice requirements
should not apply to food that is brought across the U.S. border but not
for consumption in the United States. In particular, the comments focus
on food exported from the port of arrival, food imported for
transshipment and export from another port, and food imported for
further processing and export. The comments argue that Congress did not
envision that the prior notice requirements would cause importers to
give notice of food not for consumption within the United States and
that notice of such food would not give FDA any useful or actionable
information. One comment states that the Bioterrorism Act repeatedly
refers to ``offered for import into the United States'' and concludes,
based on this phrase, that prior notice should apply only to food for
consumption by the citizens of the United States. One comment points to
statutory language that stipulates ``for human and animal
consumption.'' Based on this language, the comment argues that FDA
would exceed its statutory authority by requiring prior notice for
shipments not intended for consumption within the United States.
Another comment states that prior notice should not apply to food of
U.S. origin, especially if it was simply transshipped through another
country then ``re-imported'' into the United States.
(Response) These comments on scope raise the question of what
Congress intended the phrase ``imported or offered for import into the
United States'' to mean for purposes of section 801(m) of the FD&C Act.
In construing the prior notice provision of the Bioterrorism Act, FDA
is confronted with two questions. First, has Congress directly spoken
to the precise question presented? (``Chevron step one''). (Chevron,
U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842 (1984)). To find no
ambiguity, Congress must have clearly manifested its intention with
respect to the particular issue (Young v. Community Nutrition
Institute, 476 U.S. 974, 980 (1986)). If Congress has spoken directly
and plainly, the agency must implement Congress's unambiguously
expressed intent (Chevron, 467 U.S. at 842-843). If, however, the
Bioterrorism Act is silent or ambiguous as to the meaning of ``imported
or offered for import into the United States,'' FDA may interpret the
phrase in a reasonable fashion (``Chevron step two''); (Chevron, 467
U.S. at 842-843; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000)).
The agency has determined that, in enacting section 801(m) of the
FD&C Act, Congress did not speak directly and precisely to the meaning
of ``imported or offered for import into the United States.'' For the
reasons in the following paragraphs, FDA has determined that, for
purposes of section 801(m) of the FD&C Act, the phrase ``imported or
offered for import into the United States'' can reasonably be
interpreted to apply to articles that are brought into the United
States for consumption in the United States, for transshipment through
the United States and export to another country, for further processing
in the United States and export, and articles of U.S. origin that are
``re-imported'' back into the United States. We have also determined
that the phrase ``imported or offered for import into the United
States'' can reasonably be interpreted to exclude articles that are
brought to the United States for the purpose of being exported without
ever leaving the port of arrival until export.
Neither the Bioterrorism Act nor the FD&C Act defines this phrase.
Moreover, courts that have considered the meaning of ``import'' or
similar terms in other statutes have not always arrived at the same
conclusions: Sometimes ``import'' means simply to bring in, but other
times ``import'' means to bring in with the intent to unlade or enter
(Procter & Gamble Manufacturing Co. v. U.S., 19 C.C.P.A. 415, 422
(C.C.P.A. 1932) (to import ``may mean to bring goods within the
jurisdictional limits of the country * * *; or it may mean the time
when it is withdrawn from the warehouse and enters the commerce of the
country''); compare, e.g., Canton R. Co. v. Rogan, 340 U.S. 511, 514-15
(1951) (``to import means to bring into the country''); Brown v.
Maryland, 25 U.S. 419, 426, 437-38 (1827) (``What, then, are `imports'?
The lexicon informs us, they are `things imported.' If we appeal to
usage for the meaning of the word, we shall receive the same answer.
They are the articles themselves which are brought into the country.'')
with United States v. Watches, Watch Parts, Calculators & Misc. Parts,
692 F. Supp. 1317, 1321 (S.D. Fla. 1988); United States v. Commodities
Export Co., 14 C.I.T. 166, 169-70 (Ct. Int'l Trade 1990) (``once goods
are within the jurisdictional limits of the United States with the
intent to discharge, they are imports under this definition''); United
States v. Boshell, 14 U.S. Cust. App. 273, 275-77 (Ct. Cust. App. 1922)
(``The common ordinary meaning of the word `import' is to bring in.
Imported merchandise is merchandise that has been brought within the
limits of a port of entry from a foreign country with intention to
unlade, and the word `importation' as used in tariff statutes, unless
otherwise limited, means merchandise to which that condition or status
has attached'')).
In considering what is a reasonable interpretation, we considered
the language and purpose of section 801(m) of the FD&C Act, as well as
the other provisions of the Bioterrorism Act and section 801 of the
FD&C Act. Section 801(m)(1) of the FD&C Act states, ``In the case of an
article of food that is
[[Page 58991]]
being imported or offered for import into the United States, the
Secretary * * * shall by regulation require * * * the submission to the
Secretary of a notice * * *.'' FDA notes that Congress did not
explicitly limit this provision to articles of food that are intended
for consumption in the United States. However, such limiting language
does appear in section 415 of the FD&C Act, which requires certain food
facilities to register with the agency. This shows that when Congress
crafted the Bioterrorism Act, it knew how to impose the limitation
sought by the comments. But neither section 801(m) of the FD&C Act nor
its legislative history contains language suggesting this limitation.
The purpose of the Bioterrorism Act is ``to improve the ability of
the United States to prevent, prepare for, and respond to bioterrorism
and other public health emergencies.'' The prior notice provision
furthers this goal by enhancing the agency's ability to inspect
imported food upon arrival in the United States. Excluding from prior
notice food that is brought into the United States for transshipment or
further processing, rather than consumption, would run counter to the
purpose of the Bioterrorism Act. Articles entered at the port or
arrival under T&E entries with the stated intent to transship and
export may be diverted for consumption in the United States and thus
remain here rather than leave from another port. Some of this diversion
is legitimate; under CBP regulations, importers may change their minds
and file a superseding consumption entry. In addition, unscrupulous
importers may file a T&E entry instead of a consumption entry to avoid
paying duties on foods for consumption in the United States.
Unscrupulous importers may also file a T&E entry instead of a
consumption entry to try to avoid FDA review of their merchandise:
generally, FDA does not receive any notice of these kinds of entries
from CBP because these entries are not filed through ABI/ACS.
If we were to interpret ``imported or offered for import'' to
exclude those entries, we could be creating a significant potential gap
in section 801(m) of the FD&C Act's coverage. An importer could simply
bring in an article of food under a T&E entry without giving prior
notice and then, as allowed by CBP regulations, file a consumption or
other entry. Thus, this exclusion would create a loophole that could be
exploited by those who want to avoid giving prior notice, even for
articles of food that are for consumption in the United States. Given
the stated purposes of the Bioterrorism Act and of section 801(m) of
the FD&C Act, FDA has concluded that it is reasonable to interpret
``imported or offered for import into the United States'' to include
articles of food entered for transshipment and exportation.
Section 801(a) of the FD&C Act sets out the basic admissibility
procedure and standards for foods, drugs, devices, and cosmetics,
``which are being imported or offered for import into the United
States.'' As with section 801(m) of the FD&C Act, nothing in section
801(a) limits its requirements just to articles that are intended for
consumption in the United States. Indeed, section 801(d)(3) of the FD&C
Act exempts from section 801(a)'s admissibility standards certain
drugs, devices, food additives, color additives, and dietary
supplements if these items are intended at the time of ``importation''
for further processing or incorporation into a product that will be
exported. This exemption is only necessary if the phrase ``imported or
offered for import'' in section 801(a) includes the bringing into the
country of some types of goods that are for processing but not
consumption in the United States. Thus, in the context of section
801(a) of the FD&C Act, ``imported or offered for import into the
United States'' applies to more than food intended for consumption in
the United States. Finally, section 801(d)(1) of the FD&C Act, which
limits the circumstances under which U.S.-made drugs can be imported
back into the United States, makes it clear that the phrase ``imported
or offered for import'' in section 801(a) applies to items made in the
United States, exported, and then ``re-imported.''
In light of the text of section 801(m) of the FD&C Act, its
purpose, and these other provisions in section 801, we believe it is
reasonable that this interim final rule applies to food that is brought
into the United States for ``consumption'' (immediate or otherwise) in
the United States, for transshipment through the United States and
export, or for further processing in the United States and export
(often referred to as ``import for export''), and to food that is ``re-
imported.'' In addition, FDA has concluded in this interim final rule
that there are compelling policy reasons for adopting this reasonable
definition of ``imported,'' ``offered for import,'' and
``importation.''
However, when it comes to articles that are imported then exported
directly from their port of arrival, we have concluded that it is
reasonable to interpret the term ``imported or offered for import'' to
exclude them from the prior notice requirements.
Food that is brought to a U.S. port but is then directly exported
from that port of arrival is entered under a CBP IE entry and subject
to the limitations of an IE bond. In essence, this food may not leave
the port of arrival until export. These imports are thus subject to
almost identical restrictions as food that is refused under section
801(m)(1) of the FD&C Act--foods that are imported under an IE entry
may not leave the port of arrival unless exported. Given that controls
already exist to ensure that these articles are not released from the
port of arrival, FDA believes that it is reasonable to interpret 801(m)
as excluding these imports from section 801(m) of the FD&C Act's prior
notice requirements.
(Comments) One comment asks that other products covered by USDA
programs (such as products included in ``CFR(Q37)'') be exempt from
prior notice in the same manner as foods under the exclusive
jurisdiction of USDA.
(Response) The comment did not provide more detail concerning what
program is referred to by ``CFR(Q37).'' As set out in section
801(m)(b)(3)(B) of the FD&C Act, the interim final rule provides that
meat food products, poultry products, and egg products that are subject
to the exclusive jurisdiction of the USDA under the Federal Meat
Inspection Act (21 U.S.C. 601 et seq.), the Poultry Products Inspection
Act (21 U.S.C. 451 et seq.), or the Egg Products Inspection Act (21
U.S.C. 1031 et seq.) are not subject to FDA's prior notice
requirements. With regard to other USDA programs, section 315 of the
Bioterrorism Act states that no part of Title III should be construed
to alter the jurisdiction between USDA and FDA. Notably, under current
practice, FDA may have jurisdiction over an imported food under the
FD&C Act and USDA may have jurisdiction over an imported food under one
or more statutes that it administers, or the two agencies may have
joint jurisdiction over an imported food. Under its section 315, the
Bioterrorism Act does not change this structure. Accordingly, only
imported food that is regulated exclusively by USDA is exempt from
prior notice.
In addition, we believe that the statute requires prior notice to
be submitted to FDA. As described elsewhere in greater detail, we are
working with CBP to modify our existing ABI/ACS and OASIS systems to
permit additional data sharing to satisfy prior notice. Although it is
theoretically possible for FDA to obtain information from agencies
other than CBP, the stringent
[[Page 58992]]
timeframes for issuing this interim final rule do not provide FDA
adequate time to reconcile the different information required or to
work with the other agencies to have them amend their existing
requirements to capture all the information FDA needs. Merely obtaining
existing information about the food from other agencies would not
guarantee that FDA has the information required by section 801(m) of
the FD&C Act's prior notice requirements because there is wide
variation in the purposes and information required by other government
programs. We would also need to work with other agencies to ensure the
confidentiality of nonpublic prior notice information under relevant
information disclosure laws, e.g., 21 CFR 20.85 (Federal), 20.88
(State), and 20.89 (foreign). Because a purpose of providing prior
notice to FDA is to assist FDA in responding to bioterrorism incidents
or other food-related emergencies, FDA must have the required
information readily accessible. If FDA has to coordinate with other
agencies or governments to obtain from them the information necessary
to respond to such an emergency, FDA may be prevented from responding
to the emergency in a timely manner.
FDA notes that it is dedicated to increasing information-sharing
capabilities with other agencies even after this interim rule is in
effect, and we will continue to work with other government agencies to
further streamline the prior notice process, consistent with our
statutory obligations.
(Comments) Several comments suggest that exclusion for baggage in
the proposed rule should be broadened in the final rule to include all
food in baggage, even food that is not for the traveler's personal use.
For example, one comment reasons that samples carried in the baggage of
company representatives (or sent unaccompanied) generally do not enter
commercial trade.
(Response) FDA disagrees. Except as already provided for, section
801(m) of the FD&C Act does not authorize an exclusion from prior
notice for all food imported or offered for import into the United
States in baggage. In the preamble to the proposed rule, we explained
that the information that section 801(m)(1) of the FD&C Act requires in
a prior notice, in conjunction with the purpose of the provision,
demonstrates that Congress did not intend prior notice to apply to food
that travelers bring into the United States in their personal baggage
for personal use (i.e., consumption by themselves, family or friends,
not for sale or other distribution). We reasoned that when travelers
bring food back from their travels in their personal baggage for their
own use, we do not believe that Congress intended for us to
characterize such travelers as ``shippers'' for purposes of section
801(m) of the FD&C Act.
When food is not being carried by or otherwise accompanying an
individual for his or her personal use, there is a ``shipper''--the
person or entity on whose behalf the traveler is bringing in the food.
Thus, by its terms, section 801(m) of the FD&C Act requires that food
carried by or otherwise accompanying an individual arriving in the
United States that is not for personal use be subject to prior notice.
In addition, were we to adopt such an exemption, it would create a
potentially significant loophole, which could defeat the purpose of
prior notice. For example, travelers coming from Latin America
sometimes carry local soft cheeses for sale in the United States (Ref.
16). In fact, these travelers often are not staying in the United
States for any period of time, but are merely transporting cheese to
sell in the United States in their luggage or baggage. These cheeses
have been tested by FDA and found positive for listeria, salmonella,
and other pathogens associated with raw milk and insanitary conditions.
Consumption of such contaminated cheese has been associated with
illnesses and deaths. Another example is travelers arriving by
automobile who carry cases of shellfish from unapproved foreign growing
locations. These shellfish may be contaminated with a variety of
illness-causing pathogens including vibrio cholerae or Norwalk virus.
These shellfish are often not destined for personal consumption but for
sale directly to the public or for consumption by the public at
restaurants. Finally, trade samples are imported or offered for import
to generate sales, which is a commercial, not personal, use. Thus,
there is a ``shipper'' when these samples are brought to the United
States.
FDA notes that it is changing the proposed rule by removing the
term ``baggage'' and referring instead to food carried by or otherwise
accompanying an individual. This change clarifies that the exclusion
applies to food that might not be regarded as ``baggage'' but,
nonetheless, accompanies the traveler. For example, food in the trunk
of a car is not in baggage, but it accompanies the driver and any
passengers.
(Comments) Comments ask that any food imported for personal use
which arrives in the country by common carrier (e.g., express carrier,
truck, plane) should be treated the same as food imported for personal
use and carried with a traveler.
(Response) FDA disagrees. Section 801(m) of the FD&C Act does not
authorize a broad exclusion from prior notice for all food imported or
offered for import for personal use. In the preamble to the proposed
rule, we explained that the information that section 801(m)(1) of the
FD&C Act requires in a prior notice, in conjunction with the purpose of
the provision, demonstrates that Congress did not intend prior notice
to apply to food that travelers bring into the United States in their
personal baggage for personal use (i.e., consumption by themselves,
family or friends, not for sale or other distribution). We reasoned
that when travelers bring food back from their travels in their
personal baggage for their own use, we do not believe that Congress
intended to characterize such travelers as ``shippers'' for purposes of
section 801(m) of the FD&C Act. However, when food is shipped by an
individual or business in another country to a consumer in the United
States for his or her personal use (or otherwise), there is a
``shipper'' as that term is used in section 801(m)(1) of the FD&C Act
and defined in Sec. 1.276(b)(10). Accordingly, there is no basis in
section 801(m) of the FD&C Act for concluding that Congress did not
intend prior notice to apply to articles sent (as opposed to carried)
to the United States for the recipients' personal use.
(Comments) One comment asked that FDA address the issue of
noncommercial family food shipments and to add these to the list of
exemptions from prior notice. Another comment stated that a food
shipment consisting of one noncommercial shipper sending food to
another noncommercial recipient (e.g., a friend abroad shipping cookies
to a friend in the United States) should be outside the scope of the
prior notice requirement.
(Response) FDA agrees in part and we have added a provision that
excludes personal gifts of homemade food from prior notice. Although we
believe that this food is imported into the United States, the
information that Sec. 801(m)(1) of the FD&C Act requires in a prior
notice, in conjunction with the purpose of the provision, demonstrates
that Congress did not intend prior notice to apply to homemade food
sent as a personal gift by the maker to a recipient in the United
States. In particular, under Sec. 801(m)(1) of the FD&C Act, a prior
notice must contain the identity of the manufacturer of the food. When
an individual makes a food in their home as a gift for a relative or
friend, we do not believe that Congress intended for
[[Page 58993]]
us to characterize such cooks as ``manufacturers'' for purposes of
Sec. 801(m) of the FD&C Act.
(Comments) Several comments suggest that the final rule should not
apply to foods that arrive by international mail or express carriers.
(Response) FDA disagrees. Except for the exclusions already
described for food for personal use that is carried by or otherwise
accompanying a traveler and homemade gifts, section 801(m) of the FD&C
Act applies to food regardless of the method of importation. Thus,
foods that arrive by international mail and by express carriers (e.g.,
Federal Express, United Parcel Service, etc.) are subject to section
801(m)'s prior notice requirements. Indeed, FDA notes that foods,
drugs, devices, and cosmetics that arrive by mail or express carriers
are currently subject to admissibility determinations under section
801(a) of the FD&C Act, which also uses the phrase ``imported or
offered for import.'' Finally, were we to adopt such an exemption, it
would create a potentially significant loophole, which could defeat the
purpose of prior notice. Those who did not want to or could not comply
with prior notice requirements would be able to bring articles of food
in by mail or express carrier. While this might not be practical for
all kinds of foods, many foods are regularly imported by mail or
express carrier, e.g., dietary supplements and specialty foods ordered
by U.S. consumers from foreign firms. For example, one commenter states
its company provides, through Internet sales, special dietary foods and
fresh baked foods that are shipped via express carriers directly to
consumers at the rate of around 1,000 home deliveries per week.
(Comments) Several comments suggest that the final rule should not
apply to various kinds of samples, including trade and market research
samples (i.e., samples sent or carried in for the purpose of selling
products or conducting market research), trade show samples, samples
for testing for nutritional, safety, quality control, or quality
assurance reasons, and samples for basic research. These comments
reason that samples used for marketing are not intended for retail
consumption and generally do not enter commercial trade and, thus, are
not intended for use as food. In the case of samples for testing,
comments reason that these samples are for the individual's specific
and limited personal use and not for further distribution to others and
should be exempted as samples are under federal poultry and meat
inspection regulations.
(Response) FDA agrees in part. If the samples are items that are in
such early stages of research and development that they cannot yet be
considered food under Sec. 1.276(b)(5) of the interim final rule, they
would not be subject to prior notice requirements. An example of such
an item is a substance being tested for possible preservative qualities
before being tested in any food. However, samples of food, including
those for test marketing, are clearly subject to prior notice as they
are ``articles of food imported or offered for import'' as stated in
section 801(m) of the FD&C act. For example, in the summer of 2003, FDA
received a report from a poison control center in country T concerning
the acute poisoning of 9 men (one died) from ingestion of an herbal
fermented wine. Symptoms occurred within minutes. Reports indicated
that this product may have been exported to the United States in small
quantities for test marketing in restaurants. This underscores the
importance of FDA receiving prior notice of all food imported or
offered for import.
(Comments) One comment suggests that food for research and
development purposes sent directly to facilities that are registered
under section 415 of the FD&C Act should be exempt.
(Response) If the item is indeed food under this subpart and it is
not otherwise excluded under Sec. 1.277(b), prior notice is required.
There is no basis in the statute for an exemption based on the fact
that an article of food is being sent to registered facilities.
(Comments) Comments ask that articles of food that are of de
minimis value (i.e., less than $200) be exempt from prior notice. The
comments argue that such small shipments for personal use could hardly
qualify as a risk to the domestic food supply. They also point out that
enforcing prior notice on such articles would be difficult and
burdensome to FDA. In addition, they state that prior notice for these
items would be a burden on consumers as they usually do not have an
agent in the United States to represent them.
(Response) FDA notes that it has removed the restrictions on who
can submit prior notice. Thus, foreign sellers or shippers can file
prior notices for these kinds of shipments under the interim final
rule. Low-value food items are clearly subject to the terms of section
801(m) of the FD&C Act as they are ``articles of food imported or
offered for import'' as stated in section 801(m). Moreover, we do not
agree that low value shipments are always imported for personal use or
would present only de minimis risks, such that an exemption can be
justified under the de minimis doctrine. First, a low value is not
necessarily a good indication that the article is for personal use.
Many food items (e.g., produce) can have a low invoice value at
importation, especially if the shipment is not large. Moreover, in our
experience, many specialty, gourmet, ethnic, and exotic foods are often
imported for commercial purposes in very small amounts. Thus, a
shipment of bottled cooking oil or a beverage contaminated with toxic
chemicals may be represented as low-value or low-volume but could have
a wide, and very negative, public health impact. In addition, we note
that misdeclaration of value of articles of food at entry can be a
problem. Finally, any burden such an exemption might relieve would
likely be offset by the burden of administering it.
(Comments) Comments ask for an exemption for food imported into the
United States for sale in duty free stores.
(Response) FDA disagrees. Unless the food is imported and exported
without leaving the port of arrival until export, as set out in Sec.
1.277(b)(2), there is no basis in section 801(m) of the FD&C Act for
such an exemption.
(Comments) Some comments recommend that prior notice be waived for
foods in situations that they characterize as ``low risk.'' These
situations were identified in the comments as any one of the following:
[sbull] Exported from U.S.-owned foreign companies;
[sbull] Transferred between commonly owned facilities (intra-
company transfers);
[sbull] Subject to high quality control standards and/or produced
in highly-regulated businesses;
[sbull] Shipped under seal or in bond;
[sbull] Entered as high-volume, repetitive shipments;
[sbull] Processed through CBP's Border Release Advanced Selectivity
Screening (BRASS); and
[sbull] Associated with a program of assessment of low risk, such
as the Customs-Trade Partnership Against Terrorism (C-TPAT); Free and
Secure Trade program (FAST); or food safety and security programs of
foreign government regulatory authorities.
(Response) FDA disagrees. As explained previously, section 801(m)
of the FD&C Act applies to all food imported or offered for import into
the United States except as outlined in Sec. 1.277(b). Nothing in
section 801(m) of the FD&C Act authorizes an exemption for articles of
food that are ``low risk'' or covered by programs of other agencies,
such as CBP or foreign government regulatory authorities.
[[Page 58994]]
Summary of the Interim Final Rule
Section 1.277(a) provides that the interim final rule applies to
food for humans and other animals that is imported or offered for
import into the United States. This covers food for use, storage, or
distribution in the United States, including food for gifts, trade and
quality assurance/quality control samples, food for transshipment
through the United States to another country, food for future export,
and food for use in a U.S. FTZ. Section 1.277(b) sets out the
exclusions from prior notice. It excludes food carried by or otherwise
accompanying an individual arriving in the United States for that
individual's personal use (i.e., consumption by the individual or his
or her family or friends, not for sale or other distribution); food
that was made by an individual in his or her personal residence and
sent by that individual as a personal gift (i.e., for nonbusiness
reasons); food that is imported then exported without leaving the port
of arrival until export; and meat food products, poultry products, and
egg products subject to the exclusive jurisdiction of USDA under the
Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry
Products Inspection Act (21 U.S.C. 451 et seq.), or the Egg Products
Inspection Act (21 U.S.C. 1031 et seq.).
E. ``Who Is Authorized To Submit Prior Notice?'' (Section 1.278
Proposed as Sec. 1.285)
The proposed rule (Sec. 1.285) provided that a purchaser or
importer of an article of food who resides or maintains a place of
business in the United States or an agent thereof was authorized to
submit prior notice. FDA noted that a broker/filer would be authorized
to be a submitter if it was the U.S. agent of the U.S. importer or U.S.
purchaser.
FDA further proposed that if the article of food is imported for
in-bond movement through the United States for export, the prior notice
must be submitted by the arriving carrier or, if known, the carrier
making the in-bond entry.
(Comments) Many comments object to the limitation that only a
person who resides or maintains a place of business in the United
States can submit the prior notice. Some comments state that foreign-
based companies that sell food directly to U.S. individuals for their
own use, including companies that sell via the Internet, cannot expect
their individual customers to submit prior notice. In addition,
comments point out that, under some circumstances, the U.S. importer or
purchaser or carrier would not have all the information required by
prior notice, but that other entities, e.g., the foreign manufacturer/
processor, shipper, or exporter, would have the required information.
Many comments state that entities other than U.S. firms or carriers
should be allowed to submit prior notice.
(Response) FDA agrees and has removed this restriction on who can
submit prior notice. Accordingly, Sec. 1.278 of the interim final rule
provides that any person with knowledge of the required information may
submit prior notice to FDA. Thus, any person may now take
responsibility for submitting prior notice for a particular article of
food, as long as that person can provide all the required information.
This person is referred to as the submitter in the interim final rule.
The interim final rule also states that the submitter may use another
person to transmit the required information to FDA. For ease of
reference, the person who transmits the prior notice is referred to as
the transmitter in the interim final rule. If the submitter submits and
transmits the prior notice, he or she is both the submitter and the
transmitter. FDA notes that all reply messages sent by the FDA PN
System Interface will be sent to the transmitter. If prior notice is
submitted via ABI/ACS, all reply messaging goes to the customs broker
or self-filer. FDA has also revised the definition of ``you''
accordingly.
(Comments) Comments from customs brokers noted that, although they
are responsible for timely submission of all documentation required for
import entry, they are not responsible for verifying the accuracy of
information provided to them from their customer. Comments ask FDA to
clarify in the final rule that the customs broker is merely an agent
for the filing of information obtained from the importer and is not
responsible for either the adequacy or accuracy of the data submitted.
Comments assert that the responsibility of the customs broker is to
accurately submit the information provided by his or her client in
correct form and in a timely manner.
(Response) The submitter of prior notice information, regardless of
the method of or person transmitting the information, is responsible
for the accuracy of that information. If the transmitter is not the
submitter, we expect the transmitter, whether he or she is a licensed
customs broker or other kind of agent, to exercise diligence and care
to transmit the information provided by the submitter accurately.
(Interim final rule) Proposed Sec. 1.285 has been changed in the
interim final rule to Sec. 1.278, ``Who is authorized to submit prior
notice?'' The interim final rule states that any person with knowledge
of the required information may submit prior notice. This person is the
submitter. The submitter may also use another person to transmit the
required information on his or her behalf. The person who transmits the
information to FDA is the transmitter. The submitter and the
transmitter may be the same person. The interim final rule also defines
``you'' to mean the submitter or transmitter (Sec. 1.276(b)(12)).
F. ``When Must Prior Notice Be Submitted to FDA?'' (Section 1.279
Proposed as Sec. 1.286)
FDA proposed that the prior notice must be submitted to FDA no
later than 12 noon of the calendar day before the day the article of
food will arrive at the border crossing in the port of entry. As
described in the proposal, this was based on FDA's assessment of what
time was needed to meet its statutory mandate of receiving, reviewing,
and responding to prior notice.
(Comments) Generally, the comments recommend that FDA adopt a
shorter, rolling prior notice submission timeframe to reduce the burden
of the prior notice requirement on the smooth flow of commerce. Many
comments recommend a specific timeframe for submission of prior notice.
These recommendations ranged from submission of an annual report for
repetitive shipments, to submission of the notice at the time of
distribution of the food after it arrives in the United States.
Many comments recommend that the prior notice submission timeframe
be linked to a mode of transportation or type of port of entry, and
others recommend that it be linked to the type of food. Many comments
recommend a specific timeframe and associated that timeframe with
either a mode of transportation/type of port or with a type of food or
both. Comments recommend that prior notice be submitted 8 hours before
arrival; some associate the 8 hours timeframe with a water mode of
arrival only, while others associate the 8 hours timeframe with
nonperishable foods. Many comments recommend that prior notice be
submitted 4 hours before arrival; some associating the 4 hours
timeframe with land and air modes of arrival only and some associating
the 4 hours timeframe with perishable foods (produce and seafood) and
live animals only.
(Response) FDA agrees that the time for submission of prior notice
should be a rolling timeframe. FDA has determined that the time can be
shortened to reduce the effect on the
[[Page 58995]]
smooth flow of trade while still providing FDA with sufficient time to
receive, review, and respond to the information. FDA also agrees that
timeframes should be different for different modes of transport. As
such, FDA has revised the rule to require that the timing of submission
will be no more than 5 days (except in the case of international mail)
and that the prior notice submission be confirmed by FDA for review no
less than 2 hours before arriving at the port of arrival by land via
road, no less than 4 hours before arriving at the port of arrival by
air and land via rail, and no less than 8 hours before arriving at the
port of arrival by water.
When food carried by or otherwise accompanying an individual is
subject to this rule, the timeframe associated with the manner of the
individual's arrival applies. If the individual and article of food are
arriving by land via road, the prior notice must be submitted and
confirmed at least 2 hours before arrival. If the individual and
article of food are arriving by air or by land via rail, the prior
notice must be submitted and confirmed at least 4 hours before arrival.
If the individual and article of food are arriving by water, the prior
notice must be submitted and confirmed at least 8 hours before arrival.
Two major agreements between CBP and FDA allow FDA to reduce
significantly the time necessary to receive, review, and respond to
prior notice information. First, FDA and CBP have agreed to commission
or use CBP staff to perform examinations for FDA when FDA is not
present at the port of arrival. Since CBP staff generally will be
available where FDA is not, this means that FDA no longer needs lead-
time to travel significant distances to conduct inspections. In
addition, CBP agreed to modify ABI/ACS to receive, transmit, and
communicate prior notice information electronically between CBP and FDA
for most entries of imported foods by the statutory deadline in the
Bioterrorism Act of December 12, 2003. CBP's assistance with prior
notice means that FDA needs far less time to respond to prior notices.
In considering how to modify the timeframes, FDA concluded that
setting them by mode of transportation would be the best approach. Mode
of transportation is clear and easy to apply and administer, so there
is likely to be little confusion about what timeframes apply. If we
were to set timeframes based on type of food, e.g., perishable versus
nonperishable, we would have to develop and implement a system for
determining which articles of food were which. In addition, different
articles of food in the same conveyance would be subject to different
prior notice timeframes, which would subject all items in the
conveyance to the longest timeframe and add an additional layer of
complexity that could cause confusion and delays at the border.
Moreover, many comments recommended mode of transportation, which
suggests that many stakeholders, including industry, believe such a
system is workable.
In determining the actual timeframes for submission of prior notice
for each mode of transportation, FDA considered the need to provide
sufficient time for the agency to review and respond to the information
submitted, as well as the current ability of the food industry to
provide the information required within the stated timeframe given the
differences in lead time before arrival among different modes of
transportation. We determined that information for shipments whose
transport time is measured in days or weeks (e.g., ocean shipments) is
available further in advance of arrival than shipments whose transport
time is measured in hours (e.g., land and air shipments.) Staggered
prior notice submission timeframes will allow FDA reviewers to direct
additional resources to shipments with short transport times and to
defer review of shipments with longer transport times. Based on these
considerations, FDA established the prior notice timeframes in the
interim final rule to associate with the mode of transportation.
FDA is committed to exploring ways to increase integration and
reduce the prior notice timeframes further. Accordingly, FDA and CBP
will continue working together to determine what is needed to achieve
this goal. No later than March 12, 2004, the Commissioners of FDA and
CBP will publish a plan, which will include an implementation schedule,
to achieve the goal of a uniform, integrated system and to coordinate
timeframes for import prior notice information while fulfilling the
Bioterrorism Act mandates for air and truck modes of transportation
with timeframes finalized by CBP when they finalize the rule entitled
``Required Advance Electronic Presentation of Cargo Information,''
published in the Federal Register on July 23, 2003 (68 FR 43574).
For imported food arriving via international mail, the interim
final rule requires that prior notice be submitted before the food has
been sent. This timeframe allows the FDA PN Confirmation Number to
accompany the package, which is necessary to establish that prior
notice has been submitted and to match the prior notice submission to
the package upon arrival.
(Comments) Some comments recommend that the prior notice submission
timeframe be waived for foods exported from U.S.-owned foreign
companies. Other comments recommend that a different timeframe be
established for foods associated with a program of assessment of low
risk, such as the C-TPAT.
(Response) The interim final rule does not provide for a waiver of
the timeframe for foods imported by U.S.-owned firms. Nor does the rule
provide for a different timeframe for foods or firms covered by
programs of other agencies, such as C-TPAT. The interim final rule
provides for greatly reduced timeframes for foods based on mode of
transportation. These timeframes are what FDA has determined are the
minimum timeframes necessary to allow it to satisfy the statutory
mandate that the timeframes give the agency the time it needs to
``receive, review, and respond'' to prior notices. However, FDA is also
interested in exploring flexible alternatives for submission of prior
notice for foods or firms covered by programs of other agencies, such
as C-TPAT, or imported by other agencies.
(Interim final rule) Section 1.279(a) in the interim final rule has
been revised to require submission of the prior notice to FDA and the
submission must be confirmed by FDA for review no less than 2 hours
before arriving at the port of arrival by land via road, no less than 4
hours before arriving at the port of arrival by air and land via rail,
and no less than 8 hours before arriving at the port of arrival by
water. Under Sec. 1.279(b), prior notice may not be submitted more
than 5 calendar days before arrival, except in the case of food
imported or offered for import by international mail.
Under Sec. 1.279(c), if the article of food is arriving by
international mail, the prior notice must be submitted before the food
is sent to the United States.
Section 1.279(d) provides that the time of submission is fixed and
the prior notice time will start for purposes of determining if prior
notice is timely when the prior notice submission is confirmed by FDA
for review. FDA will confirm a prior notice once all required
information has been submitted and confirmed as facially complete. For
example, if the information submitted were to include a registration
number, name, city, and country for the manufacture of an article of
food, and the system review were to reveal that the registration number
does not exist or does not match the name, city, and country of the
facility, the FDA PN
[[Page 58996]]
System Interface will not provide a confirmation for that prior notice.
The transmitter will have an opportunity to correct the rejected
information. When the information is corrected, transmitted, and
determined to be facially valid, the system will then notify the
transmitter and provide the PN Confirmation Number. As set out in Sec.
1.279(d), FDA will notify the transmitter that the prior notice has
been confirmed for review with a confirmation that contains a PN
Confirmation Number. The prior notice will be considered submitted and
the prior notice time will start when FDA has confirmed the prior
notice for review.
Under Sec. 1.279(e), the PN Confirmation Number must accompany any
article of food arriving by international mail. Under Sec. 1.279(f), a
copy of the confirmation (with the PN Confirmation Number) must
accompany any article of food carried by or otherwise accompanying an
individual (unless excluded under Sec. 1.277(b)(1)), and be provided
to CBP or FDA upon arrival.
Additionally, under Sec. 1.279(g) the PN Confirmation Number must
accompany any article of food for which the prior notice was submitted
through the FDA PN System Interface when arriving in the United States
and must be provided to CBP and FDA upon arrival.
G. ``How Must You Submit Prior Notice?'' (Sec. 1.280 Proposed as Sec.
1.287)
FDA proposed that prior notice and any amendments and updates must
be submitted electronically to FDA through a new Web interface. The
proposed rule also required submission of hard-copy prior notice, in
person or by e-mail or fax, if the FDA system was not operating. Before
issuing the proposed rule, FDA consulted with CBP, which was then the
U.S. Customs Service of the Department of the Treasury, about the
proposed rule and the feasibility of modifying ABI/ACS to accommodate
the new prior notice requirement. During these consultations, CBP
advised that ABI/ACS could not be modified to accommodate the data
requirements of the prior notice regulation by the December 12, 2003,
statutory deadline.
(Comments) Many comments focus on the proposed method of submission
of prior notice. These comments fall into four broad categories. The
first category, which includes the largest number of comments, suggests
that FDA work more closely with other agencies, and in some cases other
countries, to eliminate redundancies or conflicts in the method of
submission. The majority of these comments urge the FDA to work more
closely with CBP. A second group of comments addresses the viability of
the proposed Web-based system for submission of prior notice. The third
category includes suggestions about the prior notice form that was
included in the proposed rule. The final category of comments asserts
that existing systems and procedures provide adequate defense against a
bioterrorism threat and that the proposed regulation is unnecessary.
1a. Work With Other Agencies To Eliminate Redundancies
(Comments) Most comments recommend that FDA and CBP work together
to reduce the adverse impact of submission of information in both prior
notice and CBP entries. Most of these comments suggest that the
existing ACS-OASIS interface between CBP and FDA be used to accept
prior notice information. Other comments suggest that much of the
information required for prior notice was available in CBP's Automated
Manifest System (AMS). Although many comments suggest that the existing
systems contained sufficient information to meet the statutory
requirements, others recognize that modifications were needed to meet
the Bioterrorism Act's requirements.
(Response) FDA and CBP agree with many of the comments made about
inter-agency cooperation as well as with the recommendation that we
provide a single point of data entry for CBP and FDA for as many kinds
of entries as possible. FDA and CBP are committed to the joint
implementation of an automated approach to prior notice that will meet
the following objectives: (1) Reduce submission of redundant data to
the extent possible; (2) build on current operational procedures; and
(3) implement the law with minimal disruption to current entry
practices.
The interim final rule requires prior notice to be submitted
electronically to FDA through CBP's ABI/ACS or the FDA PN System
Interface. Prior notice may be submitted through ABI/ACS for all food
imports subject to this interim final rule except food imported by
international mail or other transactions that cannot be submitted
through ABI/ACS and food that has been refused under section 801(m) of
the FD&C Act. The proposed rule was based on an initial review by both
FDA and CBP of the feasibility of implementing new operational
procedures and enhancing existing systems. After further review of the
potential technical, legal, and operational impacts, FDA and CBP have
determined that the prior notice information required for most types of
CBP entries of foods can be submitted through the existing ABI/ACS and
provided to FDA. The existing ABI/ACS-OASIS interface allows for
communication both between FDA and the customs broker or self-filer
(necessary for the submission of prior notice to FDA as required by
section 801(m)(1) of the FD&C Act), and between FDA and CBP (necessary
for followup at the border). However, although much of the information
required for prior notice currently existed in some automated form in
ABI/ACS, not all the necessary data were available in the right
sequence or at the right time to meet prior notice requirements. Thus,
FDA and CBP have been working closely together and enhancing, ABI, ACS,
and OASIS to craft operational procedures and systems that meet the
requirements of the Bioterrorism Act with minimal impact on existing
processes.
Since prior notice is required for some of imported food for which
electronic transmission of information to CBP is not available via ABI/
ACS and since submission of information through ABI/ACS is not
mandatory, an alternative means to submit prior notice will still be
needed. Although a CBP entry is not normally submitted in ABI/ACS for
T&E entries and IT entries and FTZ admissions, a new transaction
format, similar to the existing ABI transactions, will be available for
submitting prior notice for these imports through ABI/ACS. The FDA PN
System Interface will also be available for international mail, food
refused under section 801(m) of the FD&C Act, and those who choose not
to submit prior notice through ABI/ACS.
1b. CBP AMS
(Comments) Several comments note that some of the information FDA
required for prior notice was already being submitted to AMS and
suggested that FDA could retrieve data from AMS rather than ask for a
separate submission for prior notice.
(Response) AMS is a module of ACS through which carriers, port
authorities, or service bureaus transmit electronically the cargo
declaration portion of the inward foreign manifest to CBP. The
information submitted to AMS is not sufficient to satisfy section
801(m)(1) of the FD&C Act's requirements. For example, the identities
of the manufacturer, grower, FDA product code, and quantity of each
article are not submitted to AMS. FDA and CBP have consulted about
interfacing with AMS for manifest data and determined that the general
cargo data in AMS were simply not suitable to accommodate the detailed
information requirements of section 801(m) of the FD&C Act. In
addition, no
[[Page 58997]]
interface currently exists between AMS and the existing interface with
OASIS through the ABI/ACS entry processes, which means FDA does not
have any access to AMS data. However, section 801(m) of the FD&C Act
requires that prior notice be submitted to FDA. Given the
implementation date of December 12, 2003, CBP and FDA concluded that it
was not practical to attempt to modify AMS to accommodate the new prior
notice requirements when we could enhance the existing ABI/ACS-OASIS
interface.
2a. Viability of a Web-Based System
(Comments) A common concern expressed by commenters is the
viability of the FDA PN System Interface for the volume of data traffic
and the time-sensitive nature of prior notice information. Multiple
comments address system availability, the time needed to enter and
process the data, and the need for confirmation.
(Response) FDA agrees that implementation of a new FDA PN System
Interface as the primary means of data submission for 25,000 plus
transactions a day would be challenging, particularly considering the
effect on the food industry if the system were not responsive. That
concern has been substantially addressed as a result of the commitment
by CBP and FDA to work together to enhance the existing ABI/ACS-OASIS
interface to accommodate the prior notice requirements. The decision
includes the development of a new ABI/ACS ``transaction type'' that
will accommodate prior notices for IT entries, T&E entries, and food
shipped directly to an FTZ. This new feature further reduces the number
and type of transactions that must be submitted through the FDA PN
System Interface.
FDA anticipates that less than 10 percent of the total submissions
will be submitted through the FDA PN System Interface. The FDA PN
System Interface will be available 24 hours a day, 7 days a week. FDA
has taken steps to ensure that the FDA PN System Interface can provide
adequate response times to support data entry and return of
confirmation by reply messaging.
2b. Contingency System
(Comments) FDA received several comments on the need for a
contingency plan or backup plan in case of FDA Web system failure. The
severity of the consequences if FDA were to fail to receive a prior
notice, and the common experience with Web system failures, was of
great concern to many of the system's potential users. Many suggestions
were made for contingency plans, e.g., information on what FDA plans to
do if the automated system is unavailable.
(Response) FDA agrees that plans for contingencies are needed, even
with the reduced volume of traffic on the FDA PN System Interface and
the existence of two modes of submission. FDA does not plan to exempt
any specific categories of food articles from prior notice if systems
are not performing; FDA and CBP are working together to develop
contingency plans for when the system(s) are not working. The interim
final rule, Sec. 1.279(b) through (d), sets out how we will handle
prior notice in four ``down-time'' situations: The customs broker's or
self-filer's access to ABI/ACS is not working; the ABI/ACS interface is
not working; the FDA PN System Interface is not working; and OASIS is
not working. In all these situations, an alternative form of prior
notice information is required. If access to ABI/ACS is not available,
prior notice must be submitted via the FDA PN System Interface. If FDA
determines that FDA PN System Interface is not working, prior notice
must be submitted manually by those who do not use ABI/ACS. If FDA
determines that OASIS is not working, all prior notices must be
submitted manually. FDA will issue notification through notices on the
FDA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov, at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov, and
through messages in ABI/ACS. Once FDA issues this notification, prior
notice information must be submitted to FDA by e-mail or by fax.
Manual submissions must be submitted by e-mail or fax. Because all
review is being done in a centralized location, we will not accept
manual submissions in person. The FDA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov
will have a list of the information required for prior notice
submission and the fax number(s) and e-mail address(es) where prior
notice can be sent. The list of the information required can be
printed. It can also be downloaded to the submitter's or transmitter's
word processing system and used as a basis for submitting prior notice
information to FDA. Because the FDA PN System Interface at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov and FDA's Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov are located
on independent platforms, this information will be available even when
the FDA PN System Interface is not working. This fax number and the e-
mail address will not be activated to accept prior notice information
unless FDA determines that the FDA PN System Interface or OASIS is not
working. Additional information about the down-time, i.e., confirmation
that the FDA PN System Interface or OASIS is down and estimated down-
time will be posted at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see ``prior notice'' and
will be available from the help desk.
2c. Alternate Methods
(Comments) Several comments suggest more than one path for
submission of prior notice information. Some comments ask that FDA
allow for manual submission, either as a backup, or as an alternate
path. Others suggest that some types of ``safe'' products be allowed to
bypass prior notice if the system were not performing. Still others
suggest that the potential for catastrophic system failure requires FDA
to implement 2 interfaces for prior notice data, often implying that
ACS was an appropriate alternative system.
(Response) FDA does not agree that a process for manual
transmission is needed, except on a contingency basis. FDA believes
that, in 2003, persons engaged in international commerce have, or can
get, access to the Internet. If the Internet is not accessible by the
submitter, he or she can use a customs broker to submit prior notice
through ABI/ACS or another person to transmit prior notice through the
FDA PN System Interface. As the primary mode of submission, manual
transmission would not give adequate time for FDA personnel to receive,
review, and respond, unless the timeframes for prior notice in the
interim final rule were greatly extended. Thus, manual transmission
will be used only as a contingency alternative. FDA also notes that the
data quality of manual systems is usually less than satisfactory,
because no automated data validation takes place during data entry. The
U.S. Government has a strong commitment to reducing paper-based
processes and moving toward e-commerce for all business transactions.
Accordingly, under the interim final rule, paper-based submissions will
not be allowed, except as set forth in Sec. 1.280(c) and (d), by e-
mail and fax. However, FDA and CBP do not expect system failures to be
a common occurrence.
2d. Security of System
(Comments) Several comments question the security of the system and
suggested that the system must have extraordinarily stringent security
protocols in place to protect sensitive commercial information and
prevent potential terrorists from obtaining information capable of
providing cover.
(Response) FDA agrees the information must be secure. Any
fraudulent or inadvertent changes in data could affect FDA response and
thus affect the health and welfare of
[[Page 58998]]
consumers in the United States. FDA has determined that the data
security and data integrity requirements of the prior notice data are
on par with entry data currently submitted through ABI/ACS to OASIS.
Prior notice data submitted through ABI/ACS will have the same security
and access controls as entry data currently received through ABI/ACS.
Adequate and effective security controls will be placed on the FDA PN
System Interface through user account management and authentication
processes, and password controls, to ensure data security and
integrity.
A number of statutes, regulations, and policies address protection
of sensitive information from unauthorized disclosure. Some that are
relevant to prior notice include the Clinger-Cohen Act of 1996, the
Computer Security Act of 1987, the Trade Secrets Act, 21 CFR 20.61
(Trade Secrets and Commercial or Financial Information Which Is
Privileged or Confidential), OMB Circular A-130 (Management of Federal
Information Resources), and FDA Staff Manual Guide 3250.15 (Information
Technology Security, Data Security--Data Confidentiality). For example,
Appendix III to OMB Circular No. A-130 establishes a minimum set of
controls to be included in an agency's information security program and
requires security controls to be commensurate with the risk and
magnitude of the harm resulting from the loss, misuse, or unauthorized
access to or modification of information.
3a. Prior Notice Form
(Comments) Several comments suggest changes to the proposed form.
Most of these recommend changes in the order of items in the form.
(Response) The draft form that was provided as an attachment to the
proposed rule was intended only to provide a graphic summary of the
information to be collected by the FDA PN System Interface (68 FR
5334). The form was an illustration, intended to help potential users
to visualize the data requirements and to better analyze their
relationship and impact. FDA did not intend the draft form to be a
sample of the screens that will be available to the user on the
proposed FDA PN System Interface. Nor was it intended to be a draft
paper form, since paper-based submission will not be acceptable, except
as a contingency if the system is not operating.
The actual screens of the FDA PN System Interface are based on
standard Web design principles, with primary attention to support of
anticipated data entry. The screens will incorporate extensive use of
``pull-down'' lists to assist users in entering their data. For
example, transmitters will use a predefined pull-down list of
International Standards Organization (ISO) codes for countries to enter
the country from which the article is shipped. Screen design places
critical data entry items at the beginning of the submission process
and uses those items to drive later processes. Data entry processing
will also include robust and user-friendly data validation to ensure
that transmitters enter data correctly and do not fail prior notice
because of inadvertent errors in their data entry screens. Additional
description of the FDA PN System Interface is included in the
discussion of the interim final rule at the end of this section.
3b. Form Processing
(Comments) Several comments make suggestions about the way the form
should be processed, requesting self-populating fields, the ability to
change information without redoing the whole form, confirmation after
submission, and other features that would make submission easier.
(Response) As noted previously, FDA did not intend the draft form
in the proposed regulation to suggest processing sequences. Submitters
or transmitters using the ABI/ACS interface to submit prior notice data
to the FDA will be able to make full use of the capabilities of their
particular ABI software's automation features. The FDA PN System
Interface will permit initial partial data entry and will allow the
user to save the information entered until all data are available for
submission. The FDA PN System Interface is designed to accept
``header'' information that will permit repeated information to be
automatically entered. This ``header'' would contain information
consistent across several articles of food within the same submission,
e.g., date and time of arrival for several articles of food in one
shipment. This will reduce the amount of data entry and potentially
reduce typing and transcription errors. FDA has developed the FDA PN
System Interface to allow submitters to automatically repeat
information already entered in the submission where appropriate (e.g.,
all information is the same except for the identity of the article or
the manufacturer).
The order of information required in prior notice is displayed to
best support user input. For example, the first information required is
the identification of the submitter and transmitter, if applicable. The
next information is the common information that may apply to all
articles of food for which prior notice is being submitted at the same
time, such as the manufacturer, shipper, carrier, etc. For example,
when a manufacturer is identified for the first article of food, the
submitter will be able to indicate, using a check box, that the
manufacturer is the same for all articles of food in the shipment.
3c. Clarification of Fields
(Comments) A few comments ask for clarification on the meaning of
specific fields.
(Response) Elsewhere in this rule FDA sets out the information that
must be submitted in a prior notice (see Sec. 1.281). In addition,
online help will be available, which will include descriptive
information on data fields, and their relationship to other required
information and references to the requirements. FDA will also provide a
help desk with staff who will answer questions that are not
specifically answered by the online help. Information on how to contact
the help desk will be available on both the FDA PN System Interface at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov and the FDA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see
``prior notice.''
4. Existing System Adequate
(Comments) Several comments suggest that the regulations proposed
were unnecessary and that FDA already had the data required, so prior
notice would not provide any additional security. These comments
conclude that the proposed regulation is therefore functionally
redundant.
(Response) Congress mandated prior notice when it enacted the
Bioterrorism Act. FDA disagrees with the assertion that prior notice
will not provide any additional security because similar information
about food is already available. Current systems do not provide all of
the information required by the Bioterrorism Act. Nor do they ensure
that FDA is provided with the required information before arrival, as
required by Congress when it passed the Bioterrorism Act.
5-11. Description of the Prior Notice Submission Systems
Prior notice submission and electronic review will be accomplished
through several new or enhanced components of FDA's and CBP's existing
electronic systems.
a. ABI/ACS interface. The existing ABI/ACS interface, which sends
data from customs brokers or self-filers through ACS to OASIS, will be
enhanced to support the prior notice requirement. For customs brokers
or
[[Page 58999]]
self-filers providing prior notice as part of their CBP entry through
the ABI/ACS interface, the process for submission and response will be
similar to the current process for submitting entry information about
FDA-regulated products. A customs broker or self-filer will enter and
transmit the information currently required in a CBP entry, along with
any additional information required in prior notice, using the software
that currently supports submission of data through the ABI interface.
(Changes will be required to the existing software to support the
additional information required in the prior notice.) As it does
currently, ACS will validate the submission to ensure that data
required by CBP and FDA is entered. The existing validation will be
enhanced to include validation of some prior notice information. If
errors or deficiencies are found, the transmission will be rejected and
the customs broker or self-filer can resubmit after correcting the
errors or deficiencies.
Once ACS determines a submission is valid, the prior notice
information and other data will be transmitted to OASIS. OASIS will
perform additional data checks and validations. Validation is the
process by which the data are checked for completeness and self-
consistency by the system. It is a rapid process that does not include
screening the data for potential public health concerns. That screening
occurs after data validation. If the submission is determined to be
facially valid, FDA will transmit a message through ACS to the customs
broker or self-filer. The message will provide the Prior Notice
Confirmation Number (PN Confirmation Number), which verifies that the
prior notice has been confirmed by FDA for review.
If errors are found, OASIS will reject the submission and generate
a message(s) identifying where the error occurs. No PN confirmation
number will be issued. After the customs broker or self-filer is
notified of the errors, the customs broker or self-filer can correct
the errors and resubmit the entire entry using the same entry number
through the existing CP transaction process (which is the existing
transaction for brokers or self-filers to resubmit FDA-specific data
through ACS). This process only allows FDA-specific data to be
corrected for resubmission, and not CBP-specific data.
A new ABI/ACS-OASIS interface, modeled after the existing process,
will be available to submit prior notice for an article of food
entering the United States as an IT or T&E entry, or an FTZ admission.
This new transaction will not require all of the information currently
submitted to CBP at the time a consumption entry is filed, but will
require complete prior notice information. Processing of these prior
notices will be similar to that described for consumption entries.
However, prior notice will be submitted by a new transaction type that
will require only the information needed for prior notice and to
support messages to CBP regarding the adequacy of the prior notice.
If CBP entry is later filed, the PN Confirmation Number for the
article must be entered as an affirmation of compliance for OASIS
purposes as evidence that prior notice for the product was submitted
and confirmed before arrival. Depending on the capabilities of a
customs broker's or self-filer's software, a copy of the ABI Cargo
Release Summary will also show that the prior notice has been received,
though not necessarily confirmed, by FDA.
The following list identifies the types of entries, with
accompanying CBP description, for which prior notice may be submitted
through ABI/ACS at the submitter's option:
``Consumption entries''--products entered for use or consumption in
the United States;
``Warehouse entries''--products subject to duty but for which
payment of duties is deferred. Merchandise entered into a warehouse may
be stored, repacked, cleaned, manufactured, smelted, refined, or sold
for export. Food must remain in the warehouse until withdrawn for
consumption in the United States (and any applicable duty paid);
``IT entries''--in-bond transportation entries for merchandise that
arrives at a Customs port of entry but is transported without
appraisement to another Customs port of entry where it may be entered
for consumption or warehouse, admitted into a FTZ or may be the subject
of another transportation entry;
``T&E'' entries''--in-bond transportation entries for merchandise
which arrives at a Customs port of entry and is to be transported
without appraisement through the Customs territory and then exported;
and
``FTZ admissions''--are for merchandise to be used in manufacturing
or exhibition or to be manipulated in a FTZ. Merchandise admitted into
the zone is not subject to the payment of duties. Merchandise may be
withdrawn from the zone for consumption, warehousing, or exportation.
There are various categories of merchandise in a zone.
b. FDA PN System Interface. The new FDA PN System Interface will be
available for international mail and other transactions that are not
accepted by ABI/ACS, food refused under section 801(m) of the FD&C Act,
and those who choose not to submit prior notice through ABI/ACS. The
FDA PN System Interface is available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov. FDA
expects that less than 10 percent of transactions will be routinely
submitted through the FDA PN System Interface. We estimated the number
of informal entries that are not currently captured by ABI/ACS and
international mail submissions based on discussions with CBP.
The FDA PN System Interface will allow the user to view and print a
prior notice confirmation, including a PN Confirmation Number, the time
the prior notice was confirmed, and a record of the information
received and validated by FDA.
To submit prior notice information electronically by the FDA PN
System Interface, the transmitter must establish a prior notice
account. FDA's Unified Registration and Listing System (FURLS) at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov will manage the issuance of user accounts for
both food facility registrations and prior notice submissions. FURLS
will be available 24 hours a day, 7 days a week, and will provide end-
users access to the systems. After successfully logging in using the
account password, FURLS will pass the user account credentials to the
FDA PN System Interface. If the transmitter has not established a prior
notice account, the transmitter will be directed to establish a prior
notice account the first time he or she accesses the FDA PN System
Interface. Subaccounts can also be created, at the discretion of the
primary account, to allow more than one person associated with a prior
notice to access the prior notice information.
A submitter or transmitter who elects to use the FDA PN System
Interface will enter information online, using a series of screens
designed to lead the submitter through the prior notice submission
process. Data will be subject to the same validation criteria used in
the ABI/ACS-OASIS interface, but the validation will be performed on-
line, in real time. When the prior notice submission has been
validated, the transmitter will receive a message showing that the
prior notice has been received by FDA for review and accepted as
facially complete. This message will include a unique PN Confirmation
Number as well as the date and time of the submission and confirmation.
The message will confirm that the prior notice is facially complete and
has been received by the FDA for review. Capability will also be
provided
[[Page 59000]]
to get a hard copy printout of the prior notice submission and a
confirmation for verification upon arrival of the article of food, if
needed.
If the prior notice was submitted through the FDA PN System
Interface, this confirmation number must accompany the article of food
when it arrives at the port of arrival. For food arriving by
international mail, the PN Confirmation Number received from the FDA PN
System Interface must be entered on the ``Customs Declaration--CN22 and
CN23'' supplied when the article is mailed. When food subject to this
subpart is carried by or otherwise accompanies an individual, the
individual must have the PN Confirmation Number, as well. The number
will provide CBP and FDA personnel at the border with the means to
connect to the results of the FDA review of the prior notice
information.
Receipt of a PN Confirmation Number is evidence only that a prior
notice has been received for FDA review. Should the FDA review process
determine that an article of food should be inspected, personnel at the
border will examine the food.
Prior Notice covering a refused food (no prior notice or inaccurate
prior notice) must be submitted through the FDA PN System Interface. In
addition to prior notice information, the FDA PN System Interface will
be used to inform FDA of the port or secure storage location where
refused food is or will be held.
12. FDA Review
The FDA prior notice review process will operate 7 days a week, 24
hours a day to review prior notice submissions transmitted through both
ABI/ACS and the FDA PN System Interface. This process begins with an
automated screening process. If additional evaluation of the prior
notice information is necessary, FDA headquarters staff, operating 24
hours a day, 7 days a week, will review the information and may
initiate an examination by FDA or CBP of the article of food at the
port of arrival, or in the case of rail shipments, within the confines
of the closest appropriate examination site. The review process is and
manual review by FDA staff. It will be designed to identify food
products that may pose serious risks to public health so that
appropriate action can be taken upon arrival in the United States. The
review process is not impacted by the method of electronic submission.
The results of this process will be transmitted to CBP.
The existing OASIS screening and FDA staff review and examination
processes will determine admissibility under section 801(a) of the FD&C
Act. Thus, food that has not been refused after review and/or
examination of the prior notice information may be subject to further
inspection and sampling at an inland destination for determination of
admissibility under section 801(a) of the FD&C Act.
13. Summary of the Interim Final Rule
The interim final rule requires that prior notice be submitted
electronically to FDA. All prior notice information must be submitted
in the English language except an individual's name, the name of a
company, and the name of a street may be submitted in a foreign
language. All information, including these items, must be submitted
using the Latin (Roman) alphabet. The prior notice may be submitted
through ABI/ACS or the FDA PN System Interface at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov.
Prior notice must be submitted via the FDA PN
System Interface for articles of food imported or offered for import by
international mail or other transaction types that cannot be made
through ABI/ACS and articles food that have been refused under section
801(m)(1) of the FD&C Act.
The interim final rule, in Sec. 1.279(b) through (d), also sets
out how we will handle prior notice in four ``down-time'' situations:
The customs broker's or self-filer's access to ABI/ACS is not working;
the ABI/ACS interface is not working; the FDA PN System Interface is
not working; and OASIS is not working. In all these situations, an
alternative form of prior notice information is required. If access to
ABI/ACS is not available or if the ABI/ACS interface is not working,
prior notice must be submitted via the FDA PN System Interface. If FDA
determines that FDA PN System Interface is not working, prior notice
may be submitted manually by those who do not use ABI/ACS. If FDA
determines that OASIS is not working, all prior notices must be
submitted manually. FDA will issue notification through notices on the
FDA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov, at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov and
through messages in ABI/ACS. Once FDA issues this notification, prior
notice information must be submitted to FDA by e-mail or by fax. Hand
delivery of hard copy to FDA is not allowed. The location for receipt
of submission by e-mail or fax is listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see
``prior notice.''
H. ``What Information Must Be in a Prior Notice?'' (Sec. 1.281
Proposed as Sec. 1.288)
Proposed Sec. 1.288 listed the information that was to be included
in each prior notice. Part of the information was taken directly from
section 801(m)(1) of the FD&C Act. The remainder of the list consisted
of information that FDA and CBP have determined is necessary to ensure
that we can enforce section 801(m) of the FD&C Act's prior notice
requirements as intended by Congress. This additional information is
thus authorized under section 701(b) of the FD&C Act (21 U.S.C.
371(b)). In the proposed rule, we explained why each of these items was
necessary for the efficient enforcement of section 801(m) of the FD&C
Act.
(Comments) Generally, comments assert that the proposed rule
required too many data elements. Some comments state that the required
information is more than that necessary to facilitate inspection; is
burdensome on industry; and is more information than that authorized by
the Bioterrorism Act, particularly with regard to product identity,
port of entry, and identification of parties involved in prior notice.
One comment argues that the prior notice was intended by Congress only
to aid FDA in its efforts to ensure the security of the food supply,
not to enhance compliance of imported food with all applicable FD&C Act
requirements.
(Response) FDA agrees with many of these comments. Accordingly, the
interim final rule will not require submission of the following
information:
[sbull] Telephone and fax numbers and e-mail addresses for most
firms;
[sbull] Registration numbers, except for the manufacturer and
shipper, if otherwise required by section 801(l) of the FD&C Act;
[sbull] Entry line numbers;
[sbull] Brand or trade name;
[sbull] CBP port of entry;
[sbull] Anticipated date of entry for CBP purposes; and
[sbull] The identities of multiple carriers.
FDA has also revised the following information requirements to make
them less burdensome:
[sbull] Quantity;
[sbull] Lot/code identifier;
[sbull] Manufacturer; and
[sbull] Grower.
Finally, FDA has added the following information requirements due
to the changes in timeframe, the need to coordinate with CBP, and in
response to comments:
[sbull] The mode of transportation; and
[sbull] Planned shipping information, including the 6-digit HTS
code.
FDA does not agree that section 801(m) of the FD&C Act is limited
to ``food security.'' The purpose of the Bioterrorism Act is ``[t]o
improve the ability of the United States to prevent,
[[Page 59001]]
prepare for, and respond to bioterrorism and other public health
emergencies.'' (Pub. L. 107-188 (emphasis added)). Title III of the
Bioterrorism Act is titled, ``Protecting the Safety and Security of the
Food and Drug Supply.'' (Pub. L. 107-188 (emphasis added)). Indeed,
when reviewing prior notices that have been submitted after a food has
already been refused for lack of adequate prior notice, Congress
explicitly directs FDA to determine if it has in its possession any
``credible evidence or information indicating that such article present
a threat of serious adverse health consequences or death to humans or
animal,'' (section 801(m)(2)(B)(ii) of the FD&C Act). This standard is
a health-based standard and is not limited to intentional acts of
contamination.
For clarity, the interim final rule also has segregated the
information requirements for food imported or offered for import by
international mail as new Sec. 1.281(b) and the information
requirements for food refused under section 801(m) of the FD&C Act as
new Sec. 1.281(c).
1. Registration Numbers
(Comments) Comments note that the submitter may not know the
necessary registration numbers and recommend that FDA confirm the
registration numbers within its system. A comment reasons that, because
FDA will have access to the contact information in its facility
registration database, FDA should only require the registration number
rather than the name, address, telephone number, fax number, and e-mail
address to reduce the burden on submitters. Another comment states that
it would be impossible to provide the FDA registration numbers of all
operators that have handled the imported food and questions FDA's need
for the registration numbers because the ``one up, one down''
recordkeeping provision added to the FD&C Act by section 306 of the
Bioterrorism Act is sufficient to help FDA take appropriate steps.
Other comments express concern about the confidentiality of
registration numbers, i.e., they may be denied access to the
registration number or be unable to verify it. Other comments state
that an importer who imports returned U.S. goods has no direct
relationship with the U.S. manufacturer and therefore assert that these
importers cannot obtain the registration number.
(Response) Registration of facilities that manufacture/process,
pack, or hold food for consumption in the United States is required by
new section 415 of the FD&C Act, which was added by section 305 of the
Bioterrorism Act. FDA does not believe that the statute gives FDA
authority to waive the registration requirement for facilities that
manufacture/process, pack or hold food for consumption in the United
States. The one instance when not providing a registration number may
be appropriate is when the manufacturer is out of business or
registration no longer is appropriate because the manufacturer has
ceased making food products under FDA's jurisdiction.
If such a food is refused because of inadequate prior notice for
failure to provide a registration number, or if the food is held under
Sec. 1.285(b), you may request an FDA review under Sec. 1.285(j). As
part of your request, you should provide FDA information to show that
the facility associated with the food is out of business or inactive.
Registration is designed to work in concert with prior notice at
the border, as reflected in new section 801(l) of the FD&C Act, which
provides that food from facilities that must register may not be
admitted into distribution for consumption in the United States unless
the relevant facilities have been registered. To enforce section 801(l)
of the FD&C Act as intended by Congress, FDA has determined that it
must review registration status of manufacturers and shippers as part
of prior notice. The information provided by registration will allow
FDA to check prior notice submissions against registration data to
confirm the identity. Moreover, the information provided by prior
notice submissions can serve as a crosscheck as to whether these firms
are registered as required and have provided the necessary updates. FDA
thus believes that prior notice and registration will work in tandem to
provide FDA with information about the article of food and a facility
involved in its production and distribution that will inform and
improve our risk-based border inspection decisions, as well as our
later admissibility determinations.
FDA does not agree that it should confirm registration without
requiring that the number be submitted. Each registered facility will
be assigned a unique registration number by FDA. Thus, the registration
number will help identify the manufacturer. Without a registration
number, it may be difficult to determine exactly which registered
facility to associate with the article: Different firms may have the
same or similar names and more than one firm may operate from a
particular location. In addition, requiring the registration number as
part of manufacturer identity makes it clear to foreign exporters and
U.S. importers from the outset when registration is required for
imported food.
FDA does not agree that the registration number, when one is
required, is sufficient by itself to ``identify'' a person in a prior
notice submission. The additional information is needed to verify that
the registration number is accurate. For example, without additional
information, there is a significant possibility of typographical
errors, leading to misidentification of facilities, which could lead to
foods being stopped at the border for inadequate prior notice and
registration. FDA is requiring identifying information in addition to
the registration number (if one is required) to reduce the number of
clerical or typographical errors in registration information that could
result in refusals. The FDA PN System Interface will require the firm
name and at least the city and country as ``confirmatory information,''
in addition to the registration number to allow for validation. (If
registration is not required for the facilities associated with a
particular article of food, a registration number may still be
provided, along with the name of the facility and the city and country.
If a registration number is not required and the submitter chooses not
to provide the number voluntarily, the name and full address of the
facility must be provided to ensure that FDA can fully identify the
correct party.)
Finally, the systems will not automatically fill in the
registration number on any documents or electronic screens that are
provided to, or appear, to the submitter or transmitter.
To minimize the burden, the interim final rule only requires
registration numbers for shippers (if the shipper is a facility
required to register for that article of food) and the manufacturer.
The interim final rule also states when a registration number is not
required in a prior notice for these persons. Under section 415 of the
FD&C Act, registration is only required for food for consumption in the
United States. Thus, the interim final rule does not require that a
prior notice include registration numbers of facilities associated with
articles of food that are imported or offered for import for
transshipment, storage and export, or further manipulation and export.
The interim final rule does not require a registration number for the
manufacturer if the article of food is sent by an individual as a
personal gift (i.e., for non-business reasons) to an individual in the
United States.
[[Page 59002]]
2. Fax & E-mail Addresses
(Comments) Some comments state that the fax number and e-mail
address should be optional.
(Response) FDA agrees, in part, and has eliminated the requirement
for telephone and fax numbers and e-mail addresses in many instances.
In the interim final rule, the telephone and fax numbers and e-mail
addresses (if they exist) are only required for submitters and
transmitters so that FDA can communicate with them, if necessary. The
prior notice submission must declare if these persons do not have a
telephone number, fax number, or e-mail address.
3. Submitter and Transmitter (Sec. 1.281(a)(1) and (a)(2) Proposed as
Sec. 1.288(a))
The proposed rule required the identity of the submitter and the
associated submitting firm.
(Comments) Comments addressing the submitter focused primarily on
who is authorized to submit prior notice and on the need for
registration numbers and fax and e-mail information.
(Response) Comments regarding who may submit, as well as comments
regarding registration numbers and telephone, fax, and e-mail
information already have been addressed.
As explained in the proposal, the identification of the submitter
is needed so that FDA knows who is responsible for the information in
the prior notice and can communicate with them when necessary. The
information is also necessary to follow up when audits, inspections, or
enforcement are necessary.
The FDA PN System Interface will allow the information transmitted
for identification of the submitter to be automatically repeated in the
same submission if the submitting firm is also any other firm
identified in the prior notice, such as the transmitter, importer,
owner, ultimate consignee, etc. This ability to automatically repeat
information may also be available for transmitters submitting prior
notice through ABI/ACS, depending on the features of the ABI software
package used by the transmitter.
(Interim final rule) Section 1.281(a)(1) requires submission of the
name of the individual submitting the prior notice, i.e., the
submitter, and his or her business address, and telephone number, fax
number, and e-mail address (if they exist), as well as the name and
address of the submitting firm associated with the submitting
individual, if it exists.
4. Transmitter (Sec. 1.281(a)(2))
The proposed rule allowed an agent to provide prior notice.
(Comments) Comments on the use of agents to provide prior notice
are discussed under Sec. 1.278.
(Response) Responses to comments on the use of agents are discussed
under Sec. 1.278.
(Interim final rule) If the prior notice is transmitted by a person
other than the submitter, Sec. 1.281(a)(2) requires the name of the
individual transmitting the prior notice, i.e., the transmitter, on
behalf of the submitter and his or her business address, telephone
number, fax number, and e-mail address, if they exist. The submission
must also include the name of the firm associated with the individual
transmitting the prior notice information, if it exists. The
identification of the transmitter is needed so that FDA may confirm the
prior notice, communicate regarding the prior notice after FDA review,
and followup when audits, inspections, or enforcement are necessary.
5. CBP Entry Type (Sec. 1.281(a)(3) Proposed as Sec. 1.288(b))
The proposed rule required the submission of the Customs entry type
associated with the article of food being imported or offered for
import (proposed Sec. 1.288(b)).
(Comments) Comments state that the CBP entry type is not always
available by noon of the day before arrival. They also note that entry
type may change depending on quota status, e.g., where a consumption
entry was planned but then was changed to a warehouse entry because an
entry quota on the product was temporarily filled or closed.
(Response) FDA and CBP believe that the significant shortening of
the prior notice timeframe resolves many of the concerns about the
availability of the CBP entry type. As discussed in the proposed rule,
FDA needs this information for screening to identify the appropriate
articles for inspection. It is also needed for communication with FDA
and CBP staff at the border. Also, entry type determines which entry
identifiers should be used (entry number, in-bond number) to identify
the shipment. In addition, the CBP entry type tells us if the article
of food is for consumption in the United States or is for export or
other uses that, in turn, allows FDA to determine that certain
information is not required (e.g., registration numbers).
(Interim final rule) Section 1.281(a)(3) of the interim final rule
requires submission of the entry type. Some examples of entry types are
listed as follows: Consumption entries, warehouse entries, and
temporary importation bond entries. Each of these types has a
designated CBP code. For prior notice submissions made through ABI/ACS,
the entry type will consist of the CBP entry code specific for that
type of entry, e.g., ``01'' for a consumption entry, ``21'' for a
warehouse entry, ``23'' for a temporary importation bond entry, etc.
These codes are ones customs brokers and self-filers currently provide
to CBP at entry. For prior notice submissions made through the FDA PN
System Interface, applicable entry types or other admission categories
will be provided for selection in a drop-down menu, e.g., consumption,
IT, T&E, mail, FTZ, etc. Explanations of the different entry types or
other admission categories will be available to help the transmitter
choose the right one.
6. ACS Entry Line Number or Other Customs Identification Number (Sec.
1.281(a)(4) Proposed as Sec. 1.288(c))
The proposed rule required the identification of the CBP entry
number, the CBP ACS line number and the FDA line number. FDA explained
that this information is necessary for screening and identification of
the appropriate articles for inspection, as well as for matching the
prior notice to the corresponding CBP entry to assess the adequacy of
the prior notice when shipments arrive and are presented for review.
(Comments) Comments state that the CBP entry number is available
only from a customs broker or self-filer, but not every import has a
broker. Other comments state that the entry number is not assigned
until the customs broker or self-filer transmits entry information
through the ABI to ACS. Thus, the entry number is not available by noon
of the day before arrival. Other comments state that entry and line
numbers are not available earlier than 4 hours before arrival at land
ports. Some comments suggest that FDA make this information voluntary.
(Response) FDA agrees in part and has removed the requirement for
submission of line numbers. The interim final rule only requires
submission of a CBP entry identifier. FDA believes that the entry
identifier is necessary for proper identification of the information in
a prior notice with the appropriate articles for inspection. FDA also
believes that submission of the entry identifier is critical for
matching the prior notice to the corresponding CBP entry, which is
necessary to assess the adequacy of the prior notice when shipments
arrive and are presented for review. For in-bond entries and FTZ
[[Page 59003]]
admissions, and for prior notices submitted through the FDA PN System
Interface, an entry identifier is critical for matching the prior
notice to the corresponding CBP entry if a consumption entry is
submitted so FDA and CBP can ensure that prior notice requirements were
satisfied. For transmitters submitting prior notice with CBP entry
information through the ABI/ACS interface, the CBP entry number
assigned by CBP is also the entry identifier. For customs brokers or
self-filers submitting prior notice for a food entering the United
States as an IT entry, a T&E entry, or FTZ admission, the CPB in-bond
number or FTZ admission number assigned by CBP is also the entry
identifier.
If prior notice is being submitted through the FDA PN System
Interface, the entry identifier will depend on the entry type and the
reason for Web submission. If available to the transmitter (e.g., the
prior notice is for a CBP entry but the ABI/ACS interface is not
available), the CBP entry number must be used. Where appropriate, the
in-bond number must be used as the entry identifier. If one of the
entry identifiers described above does not exist, the transmitter can
request a system-generated entry identifier. The FDA PN System
Interface will provide online help to assist the user in determining
what information to use as the entry identifier for a specific
transaction.
This requirement to provide an entry identifier does not apply to
articles of food imported or offered for import by international mail,
nor those carried by or accompanying an individual, unless entry is
otherwise required by CBP and an associated CBP entry identifier has
thus been assigned. In these cases, the FDA PN System Interface will
apply a system-generated entry identifier.
FDA agrees with the comments that line numbers are not necessary.
Thus, the interim final rule does not require submission of a line
number. For transmitters using the FDA PN System Interface, the system
will assign each article of food a unique number for processing and,
after validation, a PN Confirmation Number will be returned for each
article of food. For ABI/ACS submissions, when they are confirmed, the
CBP and FDA line numbers will be assigned as they are under current
procedures, and the customs broker or self-filer will receive a
confirmation number for each line through the OASIS/ACS messaging
process.
7. Product Identity (Sec. 1.281(a)(5) Proposed as Sec. 1.288(e)(1))
Section 801(m)(1) of the Bioterrorism Act states that a prior
notice must contain the identity of the article of food being imported
or offered for import. To ensure that each prior notice adequately and
completely identifies the food being imported or offered for import,
Sec. 1.288(e)(1) of the proposed rule required the submission of the
following information: FDA product code; common, usual, or market name;
brand name; quantity; and lot, code, or other identifying number.
a. General comments on product identity. (Comments) Some comments
ask that FDA obtain product identity information from existing Customs
information. Other comments believe that the information on product
identity should be limited to a general description of the product.
(Response) Under section 801(m) of the FD&C Act, FDA must have the
information before arrival. Thus, although product identity is provided
to CBP when entry is filed, currently that does not generally occur
sufficiently before arrival for FDA to review and respond as envisioned
by the Bioterrorism Act. Under the interim final rule, with the
modifications to ABI/ACS, required product identity information can be
provided through ABI/ACS. The transmission to CBP will be enhanced to
include the additional product identity information required by prior
notice, and will be used satisfy both FDA's prior notice requirements
as well as current entry requirements.
FDA does not agree that product identity should be limited to a
general description. For prior notice to accomplish its intended
purpose and help FDA protect American consumers, a precise description
of the product is necessary. For example, FDA needs to know that there
are 100 cartons containing 24/12 ounce (oz) bottles of apple juice and
200 cartons containing 48/8 oz bottles of apple juice to make its
decision whether to inspect, sample, or hold a shipment. Information
about potential contamination may apply only to 8 oz bottles of apple
juice. Therefore, it would be a drain on FDA resources, as well as
cause delays at the border, to examine and sample all juice or all
apple juice imports when only one kind of juice in one kind and size of
packaging is affected. Currently, this information is provided to FDA
when entry information is submitted via the ABI/ACS interface by a
customs broker or self-filer. For those entries submitted via a paper
mode, the invoice is included in the submission, as it was before OASIS
and ABI/ACS. The precise description of a food product is commonly
included on a commercial invoice, e.g. 200 cartons of 24/6 oz cans of
albacore tuna.
(Comments) One comment asks for clarification as to how an
``article'' of food is defined.
(Response) The description of an ``article'' of food is not the
same as the definition of ``food'' in Sec. 1.276(b)(5). An ``article''
refers to a single food that is associated with the same complete FDA
Product Code, the same package size, and the same manufacturer or
grower. These requirements are found in the information required in the
interim final rule in Sec. 1.281(a)(5), (a)(6), or (a)(7) and again in
Sec. 1.281(b) and (c).
(Comments) Some comments assert that the proposed rule increases
the paperwork burden by requiring separate notices for every article
from a different manufacturer or grower. Comments recommend that one
way to reduce this burden would be to allow a single prior notice to
cover a shipment of multiple articles of food or allow one notice per
shipment.
(Response) FDA disagrees. An article of food is a unique item
related to a specific manufacturer or grower and a specific process or
size. All of these pieces of information are critical for a risk-based
assessment of the food. FDA currently receives most of this information
from customs brokers or self-filers via ABI/ACS. The ABI/ACS system
also provides the capability to submit information for multiple food
items as lines in a single entry, when entry level information is
consistent for a number of articles in a shipment. For example,
shipment level information, such as estimated time of arrival, can be
captured once for all articles within a shipment. The ability to
minimize data entry by copying specific information from one article,
or line, to another depends upon the sophistication of the software
being used to create the submission to CBP. The FDA PN System Interface
is designed to allow for simplified submission of similar articles of
food by allowing the submitter to easily repeat common information
(e.g., FDA product code, manufacturer, etc.) while entering different
quantities (e.g., amount and package size). Both systems will thus
significantly reduce the amount of repetitive entry of information
while preserving the identity of each article of food.
b. Complete FDA product code (Sec. 1.281(a)(5)(i) Proposed as
Sec. 1.288(e)(1)(i)). FDA proposed to require the submission of the
complete FDA product code as an element of the identity of the product
(Sec. 1.288(e)(1)(i)).
[[Page 59004]]
The FDA product code is a unique numeric code currently used by FDA and
customs brokers and self-filers to describe food products, as well as
other products regulated by FDA.
(Comments) The majority of comments emphasize the need to use the
existing and familiar HTS coding structure for product reporting
instead of the FDA product code. Some comments ask FDA to update
product codes with current food items, such as botanicals, additives,
food contact substances, etc. Some comments state that the importer
might not know the exact product they will be receiving until the
product is shipped and, therefore, may not know the FDA product code by
noon of the day before arrival. One comment recommends clarification of
what the FDA product codes are and where they can be found. In
addition, another comment was not able to access the FDA product
database and urges FDA to correct this situation. Finally, one comment
suggests that FDA eliminate this data element.
(Response) The FDA product code is an existing 7-character code
that describes a product for FDA purposes by industry type and class,
packaging, process, and specific distinctive character. For example,
canned tuna is covered by FDA Product Code, 16AEE45. ``16A'' describes
the product as vertebrate fish, the first ``E'' describes the metal
package, the second ``E'' describes a commercially sterile process, and
``45'' describes the fish as tuna.
Although the HTS codes are currently utilized by CBP and FDA to
identify generally which imports are subject to an FDA admissibility
review, these codes are often not sufficient to specifically identify a
product for FDA decisionmaking. For example, in many cases, the tariff
code does not describe how the product was processed (e.g.,
commercially sterile or shelf-stable) or how the product is packaged.
For example, milk and cream are included in the same codes. These codes
differentiate milk and cream for fat content, but do not indicate the
process (pasteurization and refrigerated or commercially sterile) or
packaging (cardboard carton, plastic bottle, or shelf-stable package).
Thus, several products that FDA considers different from each other
(because these differences affect the potential safety of the food) may
be combined under one tariff number HTS code.
Both the HTS code and the FDA product code are currently required
on FDA-regulated products and are submitted through the ABI/ACS
interface. Therefore, the FDA product code is familiar to most of those
who will be transmitting prior notice. The FDA product code is
currently available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.accessdata.fda. gov/
scripts/ora/pcb/pcb.htm as a ``buildable'' code.
FDA is requiring submission of this data element for prior notice
as an integral part of the identity of the article. Risk-based
screening criteria can be very specific. Therefore, the specificity
provided by the FDA product code is necessary. In addition, the timing
requirements for submitting prior notice have been decreased
significantly. Therefore, the issue of adequately identifying the
product code at the time of submission has been reduced to the extent
possible, given the mandate from Congress to require prior notice.
The FDA PN System Interface has a menu-driven FDA product code
builder that enables the submitter to appropriately describe the
product. The FDA PN System Interface is also designed to allow a
submitter who already knows the product code to enter it directly.
FDA routinely and continually updates the FDA product codes and
product code builder electronic files to include more specific food
items, such as additives, exotic produce, and some botanicals. FDA
intends to issue guidance before the effective date of this rule that
will provide the flagged HTS codes and FDA product codes identifying
foods for which prior notice is required. This guidance will be posted
at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov, see ``prior notice.''
(Interim final rule) Section 1.281(a)(5)(i) requires the complete
FDA product identity code for the article of food covered by a prior
notice. The interim final rule allows for submission of product
identity information through ABI/ACS. Customs brokers or self-filers,
using ABI/ACS, currently may use the FDA product code builder, which is
available to the public on the FDA Web site, to identify the
appropriate product code. Those submitting prior notice through the FDA
PN System Interface will be able to access a FDA product code builder
specific to those food covered by the prior notice requirement.
c. Common, usual or market name (Sec. 1.281(a)(5)(ii) Proposed as
Sec. 1.288(e)(1)(ii)). FDA proposed to require the submission of the
common or usual or market name of the article of food as an element of
the identity of the product (Sec. 1.288(e)(1)(ii)). The customs broker
or self-filer currently submits the common or usual or market name to
ABI/ACS when entry is made, and it subsequently is transmitted to OASIS
for each entry line, e.g., article of food.
(Comments) One comment is concerned that the appropriate name of
fresh produce or fishery products may not be known at the time of
shipment.
(Response) This information is necessary to confirm the accuracy of
the product code and we have thus retained the requirement to submit it
in the interim final rule. The timing requirements for submitting prior
notice have been decreased significantly. Therefore, the issue of
adequately identifying fresh produce and ``catch of the day'' at the
time of submission has been reduced to the extent possible, given the
mandate from Congress to require prior notice.
(Interim final rule) Section 1.281(a)(5)(ii) requires that the
submitter supply the common or usual or market name in a prior notice.
(See 21 CFR 102.5 for additional information about common or usual
names.)
d. Trade or brand name (Proposed Sec. 1.288(e)(1)(iii)). FDA
proposed to require the submission of the trade or brand name of the
article of food, if it is different than the common or usual or market
name, as an element of the identity of the product (Sec.
1.288(e)(1)(iii)).
(Comments) Comments ask for clarification as to why this
information is required when the statute does not require it and the
information will likely be confusing if provided. Commenters also
recommend eliminating this data element. Comments state that some
imported products do not have a trade or brand name (e.g., agricultural
products, fish, and seafood). In addition, comments note that a single
product could have multiple brand names. Several comments note that the
importer usually does not know a product's brand or trade name.
Comments also recommend that FDA clarify in the final rule that it will
not reject an article of food for failure to include trade or brand
name when such information does not exist.
(Response) FDA agrees with the comments. FDA has also determined
that this information is not critical for risk-based screening, given
the other information in a prior notice.
(Interim final rule) FDA has eliminated the requirement to identify
the trade or brand name in the interim final rule.
e. Quantity (Sec. 1.281(a)(5)(iii) Proposed as Sec.
1.288(e)(1)(iv)). FDA proposed to require the submission of the
quantity of food described from smallest package size to largest
container as an element of the identity of the product (Sec.
1.288(e)(1)(iv)). The number of
[[Page 59005]]
container units and units of measure are to be submitted in decreasing
size of packing unit (starting with the largest). The customs broker or
self-filer currently submits the quantity of each line entry to ABI/ACS
when entry is made, and quantity subsequently is transmitted by CBP to
OASIS. FDA requested comments on whether changes in quantity will occur
after the deadline for prior notice and, if so, how commonly changes
occur and how significant the changes usually are.
(Comments) There were many comments pertaining to quantity. Some
commenters object to the requirement, stating that it can be difficult
to identify quantity. For example, comments suggest that it can be
difficult to identify quantity for processed goods, as quantity may
change. Also, the exact quantity is difficult to identify for fresh
produce and fresh fishery products due to the fast-paced shipping of
perishables and day-to-day harvesting differences. Comments state that
it is also difficult to ascertain the exact unit (e.g., weight, volume)
for bulk items. Comments also state that quantity information such as
package size is not relevant to identify the presence of intentional
contamination or a food safety hazard. Some comments object to the
level of specificity, stating that the required quantity data is unduly
detailed for inspection purposes, seldom needed for risk assessments,
and not necessary to meet the statutory requirements. Other comments
recommend that FDA allow a 2-hour amendment/update for needed
flexibility and accurate reporting or adopt a percentage over/under
discrepancy tolerance or approximated total units (e.g., weight,
volume). Comments confirm that changes in quantity occur after the
proposed deadline for prior notice and that these changes commonly
represent significant variations in quantity.
(Response) FDA continues to believe that quantity is a necessary
component of product identity. The significant decrease in the filing
deadlines addresses concerns raised by many comments. In addition, in
further response to the comments on changes in quantity, FDA has
revised the requirement to ``estimated quantity.'' This means that the
submitter must tell FDA, at the time of submission of Prior Notice, the
estimated amount of the article of food that they anticipate will be
shipped. This change provides importers with leeway to adjust
shipments, while still ensuring FDA has useful information about
overall quantity.
FDA believes that package size is necessary and part of product
identity. The base unit of measure is a critical characteristic of
product identity and is thus necessary for effective review of the
prior notice information. Base unit is critical to processing safety
requirements and is particularly important when evaluating the safety
of low-acid canned foods. Both base unit and total quantity (which
includes knowing the smallest ``package size'') are necessary for
response (examination) and communication with FDA and CBP staff at the
border. As noted in FDA's ``Food Security Preventive Measures Guidance
for Importers'' (Ref. 17), they are also critical for food security
examinations to determine if the amount ordered is the amount received.
For example, if more was received than was ordered, the guidance
recommends an investigation to determine the cause of the discrepancy
as additional and unwanted articles may have been added to
intentionally contaminate the shipment. If less product is received
than ordered or than shipped, some of the product may have been
intentionally diverted. Both base unit and total quantity are currently
data elements that can be submitted via ABI/ACS to OASIS. The tutorial
in the FDA product code builder will be revised to recommend the
appropriate association of base unit with product code, e.g., FDA
Product Code 16AEE45, canned tuna would recommend the base unit as **oz
cans.
(Interim final rule) Section 1.281(a)(5)(iii) requires that the
prior notice state the estimated quantity of food that will be shipped
from largest container to smallest package size. Some examples of
quantity descriptions are: 100 cartons of 48/6 oz cans each of tuna;
100 pallets of 2/100 pound (lb) totes each of frozen tuna loins for a
total of 20,000 lb; 100 pallets of 2/100 lb cartons each of dehydrated
pig ears for a total of 20,000 lb; 100 cartons of 20 lb of fresh
watermelons each carton for a total of 2,000 lb, and 2,000 lb of wheat
in bulk. A prior notice will not be inadequate if the estimated
quantity changes between the confirmation of prior notice and the time
of arrival. The interim final rule does not require that a prior notice
be cancelled and resubmitted if the estimated quantity changes after
confirmation.
f. Lot or code numbers or other identifier (Proposed Sec.
1.288(e)(1)(v)). FDA proposed to require the submission of the lot or
code numbers or other identifiers that are specific to the article of
food, if applicable, as an element of the identity of the product
(proposed Sec. 1.288(e)(1)(v)). Currently, when entry information is
presented to FDA through ABI/ACS, lot or code numbers may be
transmitted as ``affirmations of compliance'' and there may be more
than one identifier represented in an entry line.
(Comments) Comments state that the addition of lot, code, or other
identifier information is burdensome and not valuable for inspection
purposes. In addition, often the lot numbers are simply unknown.
Comments ask that FDA clarify, if this data element is retained, what
``lot or code number or other identifier'' means and how it should be
entered, such as by bar code, letters, or random number. Comments also
ask that FDA consider that there is no lot or code number for bulk or
commingled products. Many comments suggest that FDA consider making
this data element voluntary or removing it completely.
(Response) FDA agrees in part. The lot or code numbers are the
identification numbers or code of a production lot, which can more
specifically identify a product for screening and examination purposes
and for communication within FDA and with CBP and the grower or
manufacturer, etc. For example, recalls involving serious health risks
are often associated with a specific production lot, such as
counterfeit infant formula or underprocessed canned food. FDA screening
targets examinations based on information of public health emergencies
or recalls in foreign countries. FDA regulations already require lot/
code identifiers for some foods. Currently, low acid canned foods,
acidified foods, and infant formula are required to bear lot codes or
other identifiers (see 21 CFR 113.60(c) (low-acid canned foods); 21 CFR
114.80(b) (acidified foods); and 21 CFR 106.90 (infant formula low-acid
canned foods)). The interim final rule requires lot/code or other
identifiers only for these kinds of articles of foods. Many other foods
may have lot or code identifiers that are not required by FDA
regulation; submission of these identifiers is optional under the
interim final rule.
(Comments) Some comments object to the limitation in the proposed
rule that each lot number of a food would need its own prior notice and
asserted that FDA should permit multiple lot numbers to be identified
in one prior notice.
(Response) FDA agrees. Multiple lot numbers may be identified for
an article of food. The systems are set up to permit such submissions.
(Interim final rule) Section 1.281(a)(5)(iv) provides that lot or
code numbers or other identifiers are required in a prior notice for
articles of food that are required to bear such numbers by the FD&C Act
or by FDA
[[Page 59006]]
regulations. Submission of the required lot/code identifier will be
accommodated by ABI/ACS as an affirmation of compliance or through the
FDA PN System Interface. ACS currently allows for submission of more
than one affirmation of compliance per article of food. The FDA PN
System Interface will accept more than one lot identifier per article
of food.
8. Manufacturer (Sec. 1.281(a)(6) Proposed as Sec. 1.288(f))
As provided for in section 801(m)(1) of the FD&C Act, FDA proposed
to require the submission of the identity of the manufacturer of each
article of food. The customs broker or self-filer currently submits the
identity of the manufacturer to ABI/ACS when entry is made, and it
subsequently is transmitted to OASIS.
(Comments) Some comments state that some foods are not processed or
manufactured food, e.g., certain wild-caught or agricultural products;
therefore, a manufacturer cannot be identified.
(Response) FDA agrees. Identification of a manufacturer only is
required for a food that is no longer in its natural state. The FDA PN
System Interface will recognize (by FDA product code) these foods. The
manufacturer field must be completed for these foods (identified by FDA
product code); if it is not completed, the initial validation will
reject the submission through ABI/ACS or the FDA PN System Interface.
Guidance regarding FDA product codes that require prior notice, which
FDA intends to issue before implementation of this rule, will identify
which product codes should be associated with a manufacturer.
FDA also recognizes that if an article of food is sent by an
individual as a personal gift (i.e., for nonbusiness reasons) to an
individual, what will be available to the sender will be the name and
address of the firm that appears on the label. Thus, this information
may be supplied and a registration number need not be provided.
(Interim final rule) Section 1.281(a)(6) of the interim final rule
requires that the identity of the manufacturer of an article of food
that is no longer in its natural state be submitted as part of prior
notice. However, if the article of food is sent by an individual as a
personal gift (i.e., for non-business reasons) to an individual in the
United States, the name and address of the firm that appears on the
label under 21 CFR 101.5 may be submitted.
9. Grower, If Known (Sec. 1.281(a)(7) Proposed as Sec. 1.288(g))
As required by section 307 of the Bioterrorism Act, FDA proposed to
require the submission of the identity of all growers of each article,
if known, and the growing location if different from the grower's
business address (proposed Sec. 1.288(g)). If the submission is
amended, the proposed rule required that the identity of all growers
must be provided if known at the time of the amendment (Sec.
1.290(d)).
FDA solicited comments on whether the FD&C Act gives FDA any
flexibility to exempt or otherwise treat differently so-called
processed foods produced with products from more than one grower. FDA
also solicited comments on whether the term ``grower'' includes a
harvester or collector of wild products, e.g., some fish and
botanicals.
(Comments) A comment states that the agency does not need to
identify flexibility to exempt processed foods produced with products
from one or more grower, but rather should recognize that there is not
a grower of a processed food.
(Response) FDA agrees. Once an article of food, for prior notice
purposes, is no longer in its natural state, it has a manufacturer, but
not a grower.
(Comments) A commenter states that it is an extremely rare
occurrence for any single imported lot of a wild botanical raw material
to have been collected by a single collector. Rather, the comment
believes that the most common practice of consolidating a single lot of
wild-harvested botanical raw material involve the product of many dozen
or even hundreds of individual collectors.
(Response) FDA agrees and considers a harvester or collector to be
the grower for the purposes of this provision as the definition of
grower reflects Sec. 1.276(b)(6)). The interim final rule also allows
for the identification of a consolidator, when the submitter does not
know the identities of all harvesters or collectors at the time of
submission of the prior notice.
(Comments) Comments assert that if the grower is known, then
workload for submission of prior notice will increase immensely. The
comments recommend submitting a one-time listing of all growers that
supply the importing firm with product and the responsible party could
update the list as needed or keep a complete grower list with each firm
and supply it to FDA when needed.
(Response) The proposed regulation restated the statutory
requirement. FDA does not agree that a list would satisfy the statutory
requirement, as it would not tell FDA which grower was associated with
the particular article of food as envisioned by the statute.
(Comments) Comments state that it is very difficult to identify a
grower for commingled products (fresh produce, fishery products, and
grain) and such identification is not a typical industry practice.
Comments also ask FDA to define ``bulk,'' and specifically how to
address this issue with bulk grain.
(Response) There is only one grower per article of food that is not
in its natural state. Thus, tomatoes from two different growers are
different articles of food offered for purposes of prior notice.
However, FDA has decided that if the identity of all growers is not
known for an amount of raw agricultural product consolidated from more
than one grower, including grain or aquacultured fishery products, the
consolidator firm may be identified in the grower identity data field.
FDA emphasizes that the submitter may opt to provide the name and
address of the firm that has consolidated the articles of food from
different growers or different growing locations only when the
submitter does not know the identity of any of the growers of the
consolidated food. If the submitter knows the identity of any grower
for consolidated foods, a separate prior notice must be submitted for
each article of food represented by a known grower.
For example, if consolidator X commingles tomatoes from 5 growers
into one lot of 90 cartons and the submitter does not know the
identities of any of those 5 growers, then the submitter may opt to
provide the identity of consolidator X. If consolidator X commingles
tomatoes from 3 growers (growers A, B, and C) into one lot of 90
cartons and, although the submitter knows the identities of the
growers, none of the tomatoes can be associated with the grower (no
grower specific identifier accompanies each carton), then the submitter
may opt to provide the identity of consolidator X.
If consolidator X commingles 30 cartons of tomatoes from grower A
with 30 cartons of tomatoes from grower B and 30 cartons of tomatoes
from grower C and the submitter knows the grower associated with each
of those 30 carton lots, then each of those 30 carton lots represents
an article of food and a separate prior notice must be submitted for
each. However, if consolidator X commingles 30 cartons of tomatoes from
grower A with 60 cartons of tomatoes commingled from other growers and
the submitter knows the identity of grower A, then that 30 carton lot
can be identified by grower and represents an article of food. Two
prior notices are
[[Page 59007]]
required: The first prior notice would cover 30 cartons of tomatoes and
must identify grower A; the second prior notice would cover the
remaining 60 cartons, and the submitter may opt to identify
consolidator X.
When bulk grains are commingled, they lose their association with
each grower and the identity of grain would then be associated with the
facility that commingled, i.e., consolidated, the grain in a silo or
truck or rail car before shipment. The submitter may opt to provide the
identity of this consolidator in the prior notice.
(Comments) Comments suggest that FDA define ``if known'' and
provide guidance as to the extent of effort that should be applied to
find grower information and what will satisfy ``if known.''
(Response) Section 801(m)(1) of the FD&C Act requires that grower
information be submitted (or provided to the transmitter for
submission) if it is known. Thus, this information is not optional: If
it is known by the submitter, it must be submitted. For purposes of
this rule, FDA considers the information to be known if the submitter
is aware of or learns the grower name and growing location due to
business relationships. FDA is not requiring the submitter to seek out
information of which the submitter is not aware. However, if the
identity of the grower is in the possession of the submitter (e.g., on
documents), we believe the submitter is aware of the identity of the
grower.
(Comments) Comments state that if knowing the grower is such
crucial information, then it should be made mandatory.
(Response) Because the statute provides the identification of the
grower ``if known,'' FDA does not have the authority under section
801(m) of the FD&C Act to require the identification of the grower in
cases where that identity is not known to the submitter.
(Interim final rule) Section 1.281(a)(7) requires that a prior
notice identify the grower, if known to the submitter for an article of
food that is in its natural state. If a food comes from more than one
grower, a prior notice must provide for an article of food associated
with each grower, if their identity of that grower is known. As stated
previously under discussion of product identity, an ``article'' refers
to a single food that is associated with the same complete FDA Product
Code, the same package size, and the same manufacturer or grower. FDA
has determined that identification of the grower and the growing
location address is a more appropriate identifier than the address of
the grower. Therefore, FDA has revised the interim final rule to
require the grower name and growing location. We have eliminated the
grower's address. The interim final rule also allows that if the
submitter does not know the identity of the grower or, if the article
of food has been consolidated, the identity of any of the growers, the
submitter may provide the name and address of the firm that has
consolidated the articles of food from different growers or different
growing locations.
As stated previously under discussion of ``manufacturer,'' the FDA
system will recognize (by FDA product code) which products should be
associated with a grower and will recognize (by FDA product code) which
products should be associated with a manufacturer. Thus, if the
manufacturer field is completed for a food that is in its natural state
(as identified by FDA product code), the system will not accept the
transmission. Guidance, which FDA intends to issue before
implementation of this rule, regarding FDA product codes that require
prior notice will identify which product codes should be associated
with a grower. Submission of prior notice via the FDA PN System
Interface will allow for association of ``header information'' with an
article of food so that the transmitter would only have to identify
list each grower and growing location. Each would be identified with a
separate PN Confirmation Number associated with an entry identified.
(See description under discussion of lot/code identifier in the
previous paragraph in section III.H.7.f of this document.) A similar
capability may be possible for submission through the ABI/ACS
interface, but that is dependent upon the ABI software used by the
broker or self-filer.
10. FDA Country of Production (Sec. 1.281(a)(8) Proposed as Sec.
1.288(h)--Originating Country)
As provided for in section 801(m)(1) of the FD&C Act, FDA proposed
to require the submission of the identity of the originating country of
the article of food (proposed Sec. 1.288(h)). This term was defined in
proposed Sec. 1.277(c)(2) as the country where the article of food was
grown and harvested or if manufactured/processed, where the article of
food was produced. It is proposed, that if the article of food is wild
fish or seafood and it is harvested in the waters of the United States
or by a U.S. flagged vessel or processed aboard a U.S. flagged vessel,
the FDA Country of Production is the United States.
(Comments) Comments ask that FDA clarify which country should be
identified when the major component of the final processed food may
have come from a number of countries. Comments point to blended or
decaffeinated coffee or apple juice produced from fresh apples and
apple concentrates from more than one country as examples of such
foods. Comments also ask that FDA clarify the definition of
``originating country'' to mean the country in which the product was
last processed.
(Response) For a food that is no longer in its natural state, the
FDA Country of Production is the country where the article of food was
made. Therefore, for a food such as decaffeinated coffee or apple
juice, the FDA Country of Production is the country in which the
facility that made the food is located. For example, if the
decaffeinated coffee is produced in Country C by decaffeinating a blend
of coffees from Country A and Country B, the FDA Country of Production
is Country C.
(Interim final rule) The interim final rule in Sec. 1.281(a)(8),
requires that a prior notice contain the FDA Country of Production of
the article of food being imported or offered for import into the
United States. As set out in its definition at Sec. 1.276(b)(4), the
FDA Country of Production is, for an article of food is in its natural
state, the country where the article of food was grown, including
harvested or collected and readied for shipment to the United States.
If, however, an article of food is wild fish, including seafood, that
was caught or harvested outside the waters of the United States or by a
that is not registered in the United States, the FDA Country of
Production is the country in which the vessel is registered. For a food
that is no longer in its natural state, the FDA Country of Production
is the country where the article of food was made. However, if an
article of food is wild fish including seafood, that was made aboard a
vessel, the FDA Country of Production is the country in which the
vessel is registered. The interim final rule also provides that the FDA
Country of Production of food grown and harvested or collected or made
in a U.S. Territory is the United States.
11. Shipper (Sec. 1.281(a)(9) Proposed as Sec. 1.288(i))
As provided for in section 801(m)(1) of the FD&C Act, FDA proposed
to require the submission of the identity of the shipper of the article
of food (proposed Sec. 1.288(i)). The shipper is typically not the
carrier.
(Comments) A comment states that this information could be obtained
from Customs' AMS.
(Response) Although CBP's AMS contains information concerning the
[[Page 59008]]
shipper, that information is located in the AMS module of ACS and is
not currently available to FDA, as required under section 801(m) of the
FD&C Act, which provides that the information must be submitted to FDA.
CBP and FDA have concluded that it is not practical, at this time, to
attempt to modify AMS and the ACS-OASIS interface to provide this
information to FDA.
(Interim final rule) Sec. 1.281(a)(9) requires that the shipper be
included in a prior notice. The interim final rule defines shipper
(Sec. 1.277(b)(12)) as the owner or exporter who consigns and ships
the article of food from a foreign country or the person who sends an
article of food in international mail to the United States.
12. Country From Which the Article Is Shipped (Sec. 1.281(a)(10)
Proposed as Sec. 1.288(j))
As provided in section 801(m)(1) of the FD&C Act, FDA proposed to
require the submission of the identity of the country from which the
article of food was shipped (proposed Sec. 1.288(j)). This term is
defined in proposed Sec. 1.277(c)(3) as the country in which the
article of food was loaded onto the conveyance that brings it to the
United States.
(Comments) Several comments state that this provision would require
submission of information that FDA could obtain from Customs' AMS.
(Response) Although AMS contains information concerning the country
from which the article of food is shipped, that information is located
in the AMS module of ACS and is not currently available to FDA, as
required under section 801(m) of the FD&C Act which provides that the
information must be submitted to FDA. CBP and FDA have concluded that
it is not practical, at this time, to attempt to modify AMS and the
ACS/OASIS interface to provide this information to FDA.
(Interim final rule) Section 1.281(a)(10) requires that the country
from which the article is shipped be included a prior notice. The
interim final rule defines the country from which the article is
shipped (Sec. 1.277(b)(3)) as the country in which the article of food
is loaded onto the conveyance that brings it to the United States.
13. Anticipated Arrival Information (Sec. 1.281(a)(11) Proposed as
Sec. 1.288(k))--Anticipated Port of Entry, Anticipated Date of
Arrival, Anticipated Time of Arrival)
FDA proposed to require the submission of the anticipated port of
entry (defined as port of arrival), the anticipated date and
anticipated time when the article of food will arrive at the port of
entry in the United States (proposed Sec. 1.288(k)) to coordinate
resources for inspections, examinations, or sampling. FDA also proposed
to require the prior notice to be updated if any of the anticipated
arrival information changes after the submission of the prior notice
(proposed Sec. 1.288(k)(2)). Updates were deemed necessary so FDA
could change its plan for coordinating resources when anticipated
arrival information changes.
a. General comments. (Comments) Comments state that the proposed
rule is more restrictive than the Bioterrorism Act. Others suggest that
importers would have to work 24 hours a day, 7 days a week and that the
proposed rule would eliminate their current methods of doing business.
Several commenters ask FDA to recognize commercial realities of weather
and traffic problems that result in port and arrival time changes and
to provide more flexibility on the information requirements or
elimination of the requirements altogether. Comments state that a lack
of flexibility would amount to a limitation of the port that is
prohibited by the Bioterrorism Act and could impede trade. Other
comments state flexible arrival requirements are what Congress
envisioned and ask that FDA not refuse food at the border based on
inadequacy of anticipated arrival information, changes in border
crossing, and other problems beyond the control of the importer.
(Response) The interim final rule requires that the prior notice
identify the anticipated port of arrival. This information is necessary
to ensure FDA can plan for inspections and communicate with CBP. FDA
believes that the reduction of the timeframe for providing prior notice
will reduce the number of changes that occur to the arrival information
after submission. However, FDA also recognizes the realities of weather
and traffic changes and has written the interim final rule to
accommodate these variances.
As section 801(m)(1) of the FD&C Act prohibits any limitation on
ports, a prior notice will not be inadequate if the anticipated port of
arrival, the anticipated date of arrival, or the anticipated time of
arrival changes between the time of confirmation of prior notice and
the time of arrival. This is reflected in Sec. 1.282(a) of the interim
final rule that specifies what changes in information require
resubmission of a prior notice. However, if FDA has determined that the
article of food must be examined upon arrival and the anticipated
arrival information has changed since timely submission of the prior
notice, the article may be held by CBP at the port of arrival until the
examination can be performed.
b. Anticipated port of arrival. (Comments) Comments state it was
unclear whether the prior notice was to specify a particular bridge
crossing or the port itself.
(Response) The anticipated arrival information must specify the
anticipated port of arrival and, if there is more than one crossing
location within that port, the anticipated crossing. For the most part,
this applies to ports along the northern and southern borders of the
United States where there are several crossings over many miles, but
all are included in the same port. For example, a food arriving at the
port of Buffalo-Niagara Falls may cross at the Peace Bridge or the
Lewiston Bridge. For the purpose of this rule, to facilitate
inspection, the identification of the bridge is required. However, the
prior notice will not be inadequate if the anticipated crossing changes
between the time of confirmation of prior notice and the time of
arrival.
(Comments) Several comments ask that FDA allow importers to choose
alternate border crossings or ports because of possible traffic delays
and adverse weather conditions for air and land modes of arrival, or
changing flight destinations for air modes of arrival. Comments state
importers and even shippers and carriers do not know which border
crossing will be used until the food arrives. Some comments note that
portions of food may be discharged at different ports of arrival at the
discretion of the carrier due to cargo space and weight limitations.
(Response) As noted previously, FDA agrees that arrival locations
and times may change due to business practices, inclement weather, and
traffic conditions. The interim final rule requires the submission of
anticipated arrival information. This means that what must be submitted
are the port, crossing location, date, and time that are known to the
submitter at the time that prior notice is submitted to FDA. The
interim final rule does not require that prior notice be cancelled and
resubmitted if this information changes after FDA has confirmed the
prior notice for review. A prior notice will not be inadequate if the
anticipated port of arrival (including crossing location), the
anticipated date of arrival, or the anticipated time of arrival changes
between the confirmation of prior notice and the time of arrival.
c. Anticipated date/time of arrival. (Comments) Several comments
ask for
[[Page 59009]]
clarification on the definition of time of arrival. For arrival by
water, comments suggest defining arrival as the time the vessel reaches
the entrance to the seaport where the importer will be taking delivery,
the time the vessel reaches the port, or the time the vessel is
unloaded. For arrival by land and air, comments suggest defining
arrival as the time the vehicle reaches the border crossing, the time
the vehicle reaches traffic backed up at the border crossing, or the
time CBP begins processing the vehicle.
(Response) The interim final rule requires submission of
anticipated time and date of arrival to provide FDA with information
needed for planning resources for examinations of food at the border.
From FDA's standpoint, ``time of arrival'' relates to when the food
will first become available for examination at the border. For vessels,
this would be when the vessel docks in the port. For planes, this would
be when the plane lands. For land vehicles, such as trucks, buses, and
trains, this would be when they cross at the border.
(Comments) Some comments ask for clarification regarding which time
zone to use. Comments are concerned that, due to time zones, food may
appear to arrive in the United States before it leaves the country from
which it is shipped. Some comments suggest FDA use the time zone of the
port of arrival.
(Response) The anticipated time and date of arrival relates to the
time zone of the anticipated port of arrival. The time of prior notice
submission, anticipated arrival, and actual arrival are all based on
local time at the port of actual arrival.
(Comments) Several comments state that it was impossible for
importers to know the exact time of arrival until the food arrives
because of possible traffic delays and adverse weather conditions for
air and land modes of arrival, or changing flight destinations for air
modes of arrival. Other comments state that shippers and even carriers
do not know when the truck will arrive. However, some comments note
that exporters would be likely to know what flight the shipment was on.
(Response) The interim final rule requires the anticipated time and
date of arrival. This is the time and date the submitter anticipates
that the food will arrive at the port of arrival at the time the prior
notice is submitted and confirmed for FDA review.
(Comments) Comments also suggest that FDA obtain the arrival
information from AMS.
(Response) Although AMS contains some of this information, the
information is located in the AMS module of ACS and is not available to
FDA, as required under section 801(m) of the FD&C Act, which provides
that the information must be submitted to FDA. CBP and FDA have
concluded that it is not practical, at this time, to attempt to modify
AMS and the ACS-OASIS interface to provide this information to FDA.
(Comments) Several comments state that the 4-hour window for
updates of arrival time is too small and would cause delay in the
arrival of food and create extra work in the form of amendments. Thus,
the comments conclude the 4-hour window is unreasonable and should be
removed. Comments note that even the best-intentioned carrier could
fail to make the appointment because of waits of at least 5 hours at
the borders. Others state additional delays occur on the Mexican border
because the loads must change carriers. Some comments state that it was
nearly impossible to predict an arrival time for a vessel within a 4-
hour window because ships may arrive in port several days ahead or
behind schedule and may sit in a harbor for hours or days before being
granted permission to dock. Thus, these comments conclude the window
for updates is not realistic for sea transportation. Others state the
window for updates is impractical for rail transportation. Importers of
live animals comment that the window for updates would be impossible to
meet. Several comments suggest that FDA seek alternatives. One comment
suggests a 6-hour window for updates. Another suggests importers be
permitted to provide prior notice to FDA 2 hours before the carrier
reaches the border. One comment suggests that prior notices identifying
certain FDA-selected border crossings not be held to the arrival time
and not be required to update the prior notice at the time of arrival.
(Response) The interim final rule requires submission of
anticipated arrival information to provide FDA with information
necessary for planning examinations and communicating with CBP for
enforcement and examination purposes. FDA believes that the requirement
for submitting anticipated arrival information serves these purposes.
FDA has decided to delete the requirements for updating anticipated
arrival information because of the reduction of the time requirements
for submission. FDA recognizes that some of the anticipated information
may change after submission due to unforeseen circumstances, such as
business practices of carriers, weather conditions, and traffic
conditions.
(Interim final rule) The interim final rule (Sec. 1.281(a)(11))
requires the submission of the anticipated port of arrival, including
crossing location, if applicable, and the anticipated date and
anticipated time when the article of food will arrive at that port. The
interim final rule does not require that this information be updated if
it changes after prior notice had been confirmed by FDA for review. The
interim final rule does not require that a prior notice be cancelled
and resubmitted if any of the anticipated arrival information changes
after confirmation.
14. Port Where Entry Will Be Made for Customs Purposes (Proposed Sec.
1.288(l))
FDA proposed to require the submission of the identification of the
port where entry will be made for Customs purposes (Sec. 1.288(l)).
Often, this port is different from the port where the article of food
arrived in the United States. FDA proposed that this information is
necessary to facilitate communication with CBP and FDA field offices
concerning the adequacy of the prior notice and to enable FDA to
coordinate resources for inspections, examinations, or sampling.
(Comments) A comment questions the usefulness of the information
and asks that FDA delete the requirement because the Customs and FDA
ports of entry can be different ports. Another comment states that
providing the information would cost additional resources and time for
investigation.
(Response) FDA agrees. Due to interfacing with ABI/ACS and
development of various means of communication with CBP, this
information is no longer necessary in the prior notice submission.
Accordingly, FDA has eliminated this information requirement in the
interim final rule.
(Interim final rule) The interim final rule does not require
submission of the port where entry will be made for Customs purposes.
15. Anticipated Date of Customs Entry (Proposed Sec. 1.288(m))
FDA proposed to require the submission of the anticipated date of
entry for U.S. Customs purposes (proposed Sec. 1.288(m)). FDA proposed
that this information is critical to enable it to allocate resources
for inspecting imported food shipments and efficient communication with
and between CBP and FDA field offices.
(Comments) Several comments ask that FDA eliminate this
requirement. Comments note that the Customs date of entry is not
required by the Bioterrorism Act. Comments state that since the
[[Page 59010]]
Customs entry might be a considerable distance from the actual port of
arrival, the date of Customs entry is difficult to predict. Another
comment questions the usefulness of the Customs date of entry in
determining whether to inspect the products at the port of arrival. A
few comments ask for clarification of the Customs entry process.
(Response) FDA agrees. FDA has eliminated the Customs date of entry
in the interim final rule. Due to interfacing with ABI/ACS and
development of various means of communication with CBP, this
information is no longer necessary in the prior notice submission.
(Interim final rule) The interim final rule does not require
submission of the anticipated date of Customs entry.
16. Importer, Owner, Ultimate Consignee (Sec. 1.281(a)(12), (a)(13),
and (a)(14) Proposed as Sec. 1.288(n), (o), and (p))
Under section 801(m)(2)(B)(i) of the FD&C Act, an article of food
that is imported or offered for import with inadequate notice may not
be delivered to the importer, owner, or consignee. Thus, FDA proposed
to require their identities so that FDA can take steps to ensure that
food refused admission under section 801(m) of the FD&C Act is not
delivered to them illegally. FDA proposed that only one importer,
owner, and consignee could be identified for each prior notice.
(Comments) Some comments argue that section 307 of the Bioterrorism
Act does not require the prior notice to identify the importer, owner,
or consignee of the article of food that is the subject of the notice.
They recommend that this requirement in the proposed rule be eliminated
as beyond the scope of the statute and unnecessary for the purposes of
section 307 of the Bioterrorism Act. One comment argues that FDA should
not require submission of information about the consignee. However,
another comment states that the level of detail required is generally
consistent with the information submitted by customs brokers acting as
agents for importers of record.
(Response) As requested by some of the comments, FDA considered
deleting this information or making identity of importer, owner, and
ultimate consignee optional. However, section 801(m) of the FD&C Act
explicitly prohibits delivery of an article refused under section
801(m) to the importer, owner, or consignee. Section 801(l) of the FD&C
Act likewise prohibits delivery of an article of food that has been
imported from an unregistered foreign facility that is required to be
registered under section 415 of the FD&C Act and 21 CFR part 1, subpart
H. If we do not know the identity of these persons, we cannot determine
if an article of food that has been refused or placed under hold has
been illegally diverted and delivered. Accordingly, we have determined
that this information is critical to ensure that we can efficiently
enforce the prohibitions in section 801(m) and (l). In requiring this
information, FDA is relying on both sections 801(m) and (l) and 701(b)
of the FD&C Act.
Moreover, information identifying the importer of record and
consignee is currently provided as part of the existing entry process
(under OMB control number 0910-0046). Under the interim final rule, the
CPB and FDA entry submission may be used to satisfy prior notice. We
estimate that 80 percent of prior notices will be submitted through the
CPB ABI/ACS entry process. We are concerned that deleting this
information or making it optional for prior notice purposes could
create considerable confusion about whether the information was still
required for entry and admissibility purposes. For FDA, these pieces of
information are necessary for administering section 801(a) of the FD&C
Act and its implementing regulations, which require that FDA provide
notice of sampling and notice of intent to refuse admission to the
owner or consignee. Indeed, the identities of consignees and importers
of record have long been provided to FDA. Prior to the availability of
OASIS, FDA was provided with this information about imported foods on
the FDA Form 701 (Ref. 18). In addition to the name and address of the
importer of record and the consignee, FDA Form 701 included information
such as: Entry number and date, bill of lading number, port of lading,
country of origin, port of unloading, port of entry, value, container
number, vessel name, arrival date, location of lot, date available,
contact phone number, broker identification, manufacturer/shipper,
quantity, packaging description, and a description of the food
including the Food Canning Establishment number. Since the availability
of OASIS, all information that has been submitted through the ABI/ACS
interface has also included name and address of the importer of record
and the ultimate consignee. Those who do not provide entry information
electronically through ABI/ACS submit a ``paper'' entry to CBP and also
provide FDA paper notification that includes information on importer
and consignee. Some still use the FDA Form 701.
(Comments) One comment asserts that the identity of the consignee
is proprietary, implying that it is protected from disclosure to FDA.
(Response) Where consignee information is proprietary, it is likely
to be ``confidential commercial information'' and protected from public
disclosure. However, the fact that it is considered ``proprietary'' is
not a bar to requiring it in prior notice and entry submissions.
(Comments) Other comments ask that FDA decrease the burden of
providing this information by using the registration number, which FDA
could use to obtain the other identity information elements from its
databases
(Response) FDA agrees in part. Although the interim final rule does
not require the registration numbers of the importer, owner, or
ultimate consignee, the FDA PN System Interface allows for submission
of the name of the firm and limited address information (city and
country) when a registration number is provided.
(Comments) Other comments seek to decrease the burden by asking FDA
to require information regarding the entity submitting the prior
notice, which could be the importer, owner, or consignee, but not
regarding all three. Another comment concedes that FDA should require
the identification of the owner, but that the owner is often the
importer or the consignee.
(Response) FDA agrees. The FDA PN System Interface provides the
transmitter with the ability to easily repeat information, e.g., the
submitter is the same as the importer or the owner is the same as the
ultimate consignee. This feature may also be available for submission
through ABI/ACS, depending on the specific ABI software used by the
customs broker or self-filer. The identity of the owner is only needed
if it is not the same as the importer or the ultimate consignee.
(Comments) Several comments state that FDA should be able to
communicate its admissibility decisions and decisions about prior
notice adequacy with the importer.
(Response) As set out in the interim final rule, in the first
instance, the carrier will be notified regarding refusals under section
801(m) of the FD&C Act. Information identifying the importer will allow
FDA to follow up with the importer and develop procedures for notifying
them as well.
(Comments) A comment asks that FDA define ``importer'' consistently
with CBP. Another comment expresses confusion as to the meaning of the
term ``owner,'' asking whether the requirement for the owner's identity
in
[[Page 59011]]
the prior notice refers to the owner of the article of food at the time
it arrives at the port of arrival.
(Response) FDA believes that the persons affected by this interim
final rule will know, in most situations, what entities are referred to
by the terms ``importer'' and ``owner'' since these terms are commonly
used in importation, including the CBP entry process. If experience
with this interim final rule indicates confusion regarding these terms,
then FDA will issue guidance on them.
Regarding the term, ``importer,'' FDA agrees with the comment. The
agency believes this term should be interpreted the same as ``importer
of record'' as that term is used by CBP in regard to the entry of
merchandise.
Regarding the term, ``owner,'' FDA agrees that this is the owner of
the article of food at the time of arrival. However, if a prior notice
is given after the article is refused under section 801(m)(1) of the
FD&C Act, then the owner is the owner or the article of food at the
time the prior notice is submitted.
(Comments) Comments ask FDA to limit the information required to
identify the importer, owner, and consignee to the registration number,
which FDA could use to obtain the other identity information elements
from its databases. In this way, comments seek to decrease the burden
of prior notice submission by avoiding manual entry of addresses. Other
comments seek to decrease the burden by asking FDA to require
information regarding the entity submitting the prior notice, which
could be the importer, owner, or consignee, but not regarding all
three.
(Response) The interim final rule does not require the registration
number of the importer, owner, or ultimate consignee. However, if a
registration number is provided, city and country may be provided
instead of the full address.
(Comments) A comment states that the identification of the
importer, owner, and consignee could be obtained from AMS.
(Response) Although AMS may contain information concerning the
consignee, that information is located in the AMS module of ACS and is
not available to FDA, as required under section 801(m) of the FD&C Act,
which provides that the information must be submitted to FDA. CBP and
FDA have concluded that it is not practical, at this time, to attempt
to modify AMS and the ACS/OASIS interface to provide this information
to FDA.
(Interim final rule) Section 1.281(a)(12), (a)(13), and (a)(14) of
the interim final rule require submission of information that
identifies the importer, owner, and ultimate consignee. However, the
identification of the importer, owner, and ultimate consignee are not
required if the article of food is imported or offered for import for
transshipment through the United States under a T&E bond.
17. Mode of Transportation (Sec. 1.281(a)(15))
In the proposed rule, the timeframe for prior notice was the same
for all imports, regardless of mode of transportation. Thus, FDA did
not propose submission of the identification of the mode of
transportation.
(Comments) No comments were received on identification of the mode
of transportation. However, as discussed earlier, many comments
recommend that FDA should set the timeframes for prior notice by mode
of transport. FDA agrees and has revised the timeframes accordingly.
(Response) In the interim final rule, the timeframes are tied to
mode of transportation. Thus, mode of transportation is necessary to
calculate when prior notice is timely. In addition, FDA has determined
that, for submitting prior notice, identification of the mode of
transportation is necessary for identification of the article of food
at the time of arrival for the purposes of planning examinations and
communicating with CBP for enforcement and examination. This
information currently is provided to FDA by customs brokers or self-
filers through ACS.
(Interim final rule) Section 1.281(a)(15) requires submission of
information concerning the mode of transportation, except for those
prior notice submissions covering articles of food arriving by
international mail. For submissions through ABI/ACS, this information
will take the form of the current ABI requirements for declaration of
mode of transportation. For submissions through the FDA PN System
Interface, selection of the mode of transportation will be accommodated
by a drop-down menu.
18. Carrier (Sec. 1.281(a)(16) Proposed as Sec. 1.288(q))
FDA proposed to require the identity of each carrier or transporter
firm that transports the article of food from the country from which
the article was shipped into the United States, including the
submission of the SCAC. Identification of the carrier is necessary to
enable FDA and U.S. Customs to identify the appropriate article of food
for inspection or holding when the food arrives in the United States.
FDA notes that a carrier typically is a different firm than the
shipper. The broker or self-filer currently submits carrier information
to ABI/ACS when entry is made, and it later is transmitted to OASIS.
(Comments) Comments agree that this information is helpful and
necessary for locating cargo. Comments note that carrier information is
currently submitted to CBP via ABI/ACS to OASIS. Other comments state
that accurate carrier information cannot be provided by 12 noon the day
before arrival.
(Response) FDA believes that identification of the carrier is
necessary for the purpose of response to prior notice, both for
examination purposes and communication with CBP. The shortened
timeframes resolve the concern that the carrier may not be known by
noon the day before arrival, to the extent possible, given the mandate
from Congress to require prior notice.
(Comments) Comments ask that FDA eliminate the requirement to
identify multiple carriers, suggesting that the only pertinent carrier
is the one arriving at the U.S. port.
(Response) FDA agrees and has eliminated the requirement to
identify each and every carrier that transported the article of food
from the country of production to the United States, i.e., multiple
carriers. The interim final rule requires submission of the identity of
the carrier that is or will be carrying the article of the food from
the country from which the article is shipped to the United States.
(Interim final rule) Section 1.281(a)(16) requires submission of
the carrier's SCAC or IATA code. If these codes are not applicable, the
carrier's name and country must be submitted.
19. Planned Shipment Information (Sec. 1.281(a)(17))
The proposed rule did not require submission of planned shipment
information beyond identification of the carrier.
(Comments) Some comments suggest that, in addition to carrier
information, FDA should require vessel name, voyage/flight numbers, and
bill of lading information.
(Response) FDA agrees. FDA has determined that additional planned
shipment information is necessary for identification of the article of
food for examination and communication with CPB. The requirement is to
provide planned shipment information as it exists when the prior notice
is submitted. FDA recognizes that some of this information may change
after the
[[Page 59012]]
prior notice has been submitted and has addressed this in Sec.
1.287(a), which specifies when changes require resubmission to FDA.
Most of this information is currently submitted to FDA by customs
brokers or self-filers through ABI/ACS. The planned shipment
information is necessary to ensure the effective enforcement of section
801(m) of the FD&C Act. FDA and CBP have determined that the planned
shipment information includes submission of HTS code information. The
HTS code is particularly critical for communication between FDA and CBP
for shipments that are entered for transportation in-bond without
appraisement under 19 U.S.C. 1552 or 1553, and identification of the
HTS will assist CBP in the efficient processing of prior notice through
ACS. CBP uses the HTS number in ACS to ensure that the required FDA
information accompanies the entry or entry summary transmitted through
ABI/ACS to OASIS. For prior notices submitted through the FDA PN System
Interface, the HTS numbers are needed to ensure that the data collected
from the Customs entry when it is transmitted through ABI/ACS can be
matched to prior notice.
(Interim final rule) Section 1.281(a)(17) requires submission of
the following planned shipment information, as applicable, based on the
mode of transportation:
[sbull] Airway bill number(s) or bill of lading number(s) (not
applicable to food carried by or otherwise accompanying an individual);
[sbull] For food arriving by ocean vessel, vessel name and voyage
number;
[sbull] For food arriving by air carrier, flight number;
[sbull] For food arriving by truck, bus, or rail, trip number;
[sbull] For food arriving as containerized cargo by water, air, or
land, container number(s);
[sbull] For food arriving by rail, car number (not applicable to
food carried by or otherwise accompanying an individual);
[sbull] For food arriving by privately owned vehicle, the license
plate number and state or province; and
[sbull] The 6-digit HTS code that is applicable to the article of
food.
The interim final rule does not require that prior notice be
cancelled and resubmitted if this information changes after FDA has
confirmed the prior notice for review. A prior notice will not be
inadequate if any of the planned shipment information changes between
the confirmation of prior notice and the time of arrival.
20. International Mail (Sec. 1.281(b))
FDA did not propose separate information requirements for prior
notice for food imported or offered for import by international mail.
(Comments) No comments were received on information requirements
for food imported or offered for import by international mail.
(Response) For clarity and ease of reference, the interim final
rule segregates the information required in prior notice submissions
for food arriving by international mail. In addition, FDA has clarified
the information required in three instances. FDA has replaced
anticipated arrival information with planned date of mailing. FDA has
determined that identification of the recipient of an article of food
arriving by mail is necessary instead of the importer, owner, or
consignee. Thus, the interim final rule requires the identification of
the recipient by name and address for food arriving by international
mail. Finally, we also have not included information identifying the
mode of transportation, carrier, planned shipment information, and hold
information, as this information is not relevant to mail imports.
(Interim final rule) See table 1A in section II.J of this document
for the information requirements for food imported or offered for
import by international mail.
21. Refused Food (Sec. 1.281(c))
FDA did not propose separate information requirements for prior
notice for food refused because of inadequate prior notice. However,
proposed Sec. 1.288(d) required identification of the location where
the food is being held after the food had been refused for inadequate
prior notice. This information is necessary to ensure FDA can locate
the food for inspection and to ensure compliance with the hold
requirement.
(Comments) No comments were received on separate information
requirements for food refused because of inadequate prior notice.
However, comments ask for clarification that the hold location
information is only necessary if the prior notice was absent or
inadequate, e.g., the article of food has been refused under section
801(m) of the FD&C Act.
(Response) FDA agrees. For clarity and ease of reference, the
interim final rule segregates the information required in prior notice
submissions for food refused because of inadequate prior notice.
Submission of the hold location information is not necessary for prior
notice submissions covering an article of food arriving by
international mail.
(Interim final rule) See table 1A in section II.J of this document
for the information requirements for food refused under section 801(m)
of the FD&C Act.
(Summary of the interim final rule) Table 1A in section II.J of
this document shows a summary of all information required by Sec.
1.281(a), (b), and (c). For clarity, the table also identifies under
what circumstances certain information is not required, e.g.,
registration numbers.
I. ``What Must You Do If Information Changes After You Have Received
Confirmation of a Prior Notice From FDA?'' (Section 1.282 Proposed as
Sec. Sec. 1.289 through 1.294)
1. ``What Changes Are Allowed to a Prior Notice After It Has Been
Submitted to FDA?'' (Proposed Sec. 1.289)
FDA proposed to allow changes to certain information in the prior
notice after a prior notice was submitted. FDA proposed to allow
amendments to the product identity information when complete product
identity did not exist by the deadline for the submission of a prior
notice and updates to arrival information. The proposed rule also
required that, if the identity of the grower was not known at the time
of initial submission of the prior notice, but was known at the time of
submission of amended or updated information, the identity of all known
growers must be submitted. The proposed rule required that, in the
event that other information in the prior notice changed, no amendment
or update was permitted, and the prior notice must be cancelled and
resubmitted.
(Comments) Comments ask FDA to be more flexible in allowing changes
to prior notices. Some comments state that the time periods for prior
notice and amendments and updates are not workable and should be made
flexible. Comments note that requiring notice by noon of the day before
the anticipated importation would cause an increased amount of
amendments and updates.
Some comments note that the high degree of detail required in the
prior notice will increase the need for amendments and that the
likelihood of amendments will be more than FDA estimated. Some comments
state that if the timeframe for submitting prior notice was changed,
i.e., shortened to 4 hours for land and air and 8 hours for water, then
amendments and updates would not be necessary.
[[Page 59013]]
(Response) FDA agrees with the comments that state that if the
deadline for submission of prior notice were reduced, amendments and
updates would not be necessary. FDA has chosen timeframes that provide
it with very little leeway in the time it has to ``receive, review and
respond'' to the prior notice submissions. Thus, we concluded that we
could no longer permit changes to prior notice without restarting the
clock. In addition, the use of ABI/ACS precludes amendments and
updates: changes to ABO/ACS submissions that have been electronically
transmitted to FDA's OASIS and confirmed by FDA for review are not
feasible because CBP also needs finality so it can complete its own
screening of the entry. Therefore, the interim final rule does not
allow for changes to a prior notice after the transmitter has been
notified that FDA has confirmed the prior notice for review.
(Comments) One comment asks that FDA clearly define the
circumstances under which updates and amendments to submissions of
prior notice must be made. One comment asks FDA to clarify that a
change in the anticipated arrival information is not the same as a
product identity amendment and, therefore, is not subject to the same
mandates as the procedure for changes in the product identity.
(Response) Because the interim final rule does not provide for
amendments and updates, there is no need to address these comments
asking for clarification.
(Comments) Some comments suggest that FDA allow amendments to all
information in the prior notice. Some comments state that it is likely
that companies filing numerous prior notices will inadvertently make
clerical errors, such as telephone or fax numbers, Customs ACS entry
line numbers, or Customs entry type. Others ask for clarification of
any penalties associated with cancellation of a prior notice and
resubmission of a correct notice.
(Response) FDA believes that the reduction of the deadline for
submission of prior notice and the revisions to the information
required have eliminated much of the need for amendments. FDA notes
that transmitters should try to avoid clerical errors that could result
in unnecessary rejections or refusals. To assist, FDA has designed the
FDA PN System Interface to review presentation of some information
before confirmation. The FDA PN System Interface will reject certain
information if it is in the wrong format or does not match FDA's
databases and the transmitter will be given an opportunity to make
corrections during the submission process, before notice of
confirmation from FDA that the prior notice has been submitted for
review. The interim final rule provides for no penalty if a prior
notice is cancelled. If prior notice has been submitted and confirmed
and the food is no longer imported or offered for import, the prior
notice should be cancelled. However, if the article of food is still
imported or offered for import into the United States, submission of a
corrected and timely prior notice is necessary.
(Interim final rule) Section 1.282 of the interim final rule
requires that if the information except estimated quantity, anticipated
arrival information, and planned shipment information changes after the
transmitter receives notice that FDA has confirmed the prior notice for
review, the prior notice should be canceled. If the article of food is
still intended for import or will be offered for import, the prior
notice must be resubmitted in accordance with this subpart. If you
submitted the prior notice via the FDA PN System Interface, you should
cancel the prior notice via the FDA PN System Interface. If you
submitted the prior notice via ACS, you should cancel the prior notice
by requesting that CBP delete the line or entry. The ``clock'' restarts
after the confirmation of the submission containing the corrected
information.
2. ``Under What Circumstances Must You Submit a Product Identity
Amendment to Your Prior Notice After You Have Submitted It to FDA?''
(Proposed Sec. 1.290)
FDA proposed that product identity information required by proposed
Sec. 1.288(e)(1) may be amended if all of the information about the
identity of the food did not exist by 12 noon of the calendar day
before the day of arrival. The proposed rule also provided that the
common or usual or trade name, brand name, lot or code or
identification numbers, and quantity may be amended. FDA also clarified
that a prior notice may not be amended to change completely the
identity of the article, e.g., a prior notice identifying the food as
lettuce may not be amended to identify the food as pears. The proposed
rule provided that prior notice may be amended only once.
(Comments) Some comments suggest that FDA allow unlimited
amendments to any information requirement at any time. Several comments
express concern about the limitation of only one amendment. They
explain if the process has to start over again because the information
changes after submitting one amendment, there would be an additional 2-
day delay before the product is allowed to cross the border. Some
comments indicate that more than one amendment might be needed to
provide accurate information. Some comments indicate specific
additional information for which amendments should be allowed, such as
the carrier and consignee.
(Response) FDA has chosen timeframes that provide it with very
little leeway in the time it has to ``receive, review, and respond'' to
prior notice submissions. Thus, we concluded that we could no longer
permit changes to prior notice without restarting the clock. However,
the significant shortening in timeframes should address many of the
concerns. In addition, the submission systems will allow for correction
of errors revealed by the systems' initial validation. The interim
final rule has thus eliminated the requirement for amendments.
(Comments) One comment asks FDA to create an exemption from
quantity amendments for bulk shipments for which the actual quantity is
within 10 percent of the proposed actual quantity. (Response) The
interim final rule requires submission of the estimated quantity. This
revision nullifies the need for amendment to the quantity description
by allowing the submitter to estimate the amount of food that is
expected to arrive. The interim final rule provides for no penalty if
the quantity of an article of food imported or offered for import
differs from the quantity estimated in a prior notice.
a. Intention to amend. The proposed rule required that the
submitter must indicate his or her intention to amend the product
identity information at the time the prior notice is submitted.
(Comments) One comment contends that, if certain elements are
amendable, FDA should not need additional advance notice of that fact.
Other comments ask FDA to eliminate the requirement for the submitter
to anticipate the need for an amendment. Other comments ask for
clarification on whether the intent to amend or update must be evident
on the initial prior notice or if a product identity amendment or
arrival update can be made anytime within the minimum 2-hour
requirement.
(Response) The interim final rule eliminates the requirement for
amendments and updates. Thus, comments on the proposed limitation are
moot.
b. Topping off. FDA recognized that the limitation on amendments
might affect the practice of ``topping off a container'' by filling
unused space in the shipping container or truck bed with last-minute
shipments of other food
[[Page 59014]]
products not covered by prior notice. FDA solicited comments on how
common ``topping off'' is and the quantities of food involved.
(Comments) Comments state that it is common practice to fill extra
space in a shipment with additional product after an order has been
filled. A comment suggests that there should be an allowance for last
minute changes in a load. A comment suggests that more flexibility is
needed to avoid the extraordinary cost of importing a partial shipment.
A comment states that a prohibition on the practice of topping off
would make some shipments, particularly of smaller items, less cost
competitive and may reduce the overall availability of some products.
Another states that late offers to add additional quantities or even
additional products to a shipment at a discount make for more efficient
commerce for importers and can provide economy and value to American
consumers. Another comment suggests that FDA reconsider and adopt in
the final rule circumstances under which shippers could amend notices
to include foods from the same manufacturer or grower. The comment
further states that this would allow the full utilization of transport
space even when that space is filled with additional items not
explicitly declared in the original prior notice.
(Response) The requirements of the statute are to provide FDA with
notification of each article of food in advance of importation, not
advance notice of some of the articles of food and post-arrival
notification of others. The complete identity of each article of food
is necessary for FDA to receive, review, and respond to the notice. FDA
has significantly reduced the time required for submission of the prior
notice before arrival. FDA has also revised the way information on
quantity may be presented. The interim final rule requires the
estimated quantity of the article of food. FDA believes that both of
these revisions will allow for timely submission of accurate
information and should limit, as much as is permissible under the
statute, the effect of prior notice on the practice of ``topping-off.''
3. ``What Is the Deadline for Product Identity Amendments Under
Proposed Sec. 1.290?'' (Proposed as Sec. 1.291)
FDA proposed a 2-hour minimum deadline for product identity
amendments submitted under proposed Sec. 1.291. FDA noted that product
identity amendments are most likely to be needed for articles imported
by land or air rather than water arrivals.
(Comments) Some comments are supportive of a deadline for
amendments of up to two hours before arrival, but only if that gave FDA
sufficient time to receive, review, and respond to the information.
Some comments state that allowing amendments to be submitted up to 2
hours before arrival would not be problematic, while others contend
that limiting amendments to two hours before arrival was too
restrictive and would result in higher costs and compromised product
integrity. Comments suggest changing the deadline to allow amendments
up to 1 hour before arrival; until just before or at the time of
arrival; after arrival (with a 3 hour limit, 24 hour limit, or no limit
at all); or at any time before or after arrival. Several comments note
that some information, such as the Customs entry number or quantity,
cannot be verified by the proposed submitter until the shipment
arrives. Several comments state that the carriers should be permitted
to amend product identity information. A few commenters point out that
the proposed 2-hour period for amendments before arrival is
particularly problematic for multiple commodity exports. Comments
indicate that the need for amendments might be identified at the time
of loading, which may be less that one-half hour before arrival at the
border.
(Response) FDA has chosen timeframes that provide it with very
little leeway in the time it has to ``receive, review and respond'' to
the prior notice submissions. Thus, we concluded that we could no
longer permit changes to prior notice without restarting the clock. In
addition, as noted earlier, ACS cannot accommodate changes in
submissions that have been confirmed by FDA for review. Therefore, the
interim final rule does not provide for amendments.
4. ``How Do You Submit a Product Identity Amendment or an Arrival
Update to a Prior Notice?'' (Proposed Sec. 1.292)
The proposed rule required that a product identity amendment or an
arrival update to a prior notice may be submitted only in the same
manner as an initial prior notice; that is, electronically to FDA
through the FDA PN System Interface.
(Comments) A comment asks that the agency examine means by which
communication to the agency of any unexpected change in this
information can be provided by the entity that is actually
knowledgeable about a change in the date of arrival, for example, by
the ocean or air carrier. Several comments suggest that the carrier
that is the party with the most accurate information on arrival time
and can therefore provide the most efficient communication to FDA.
Other comments raise concerns about providing unlimited discretion to
carriers to make substantive changes to submissions, but note that the
need for carriers to make ``updates'' is essential. One comment
indicates that alternative mechanisms for the carrier to submit
updates, such as touch-tone telephones, should be explored.
(Response) Although requirements for amendments to product identity
information and arrival updates have been deleted from the interim
final rule, FDA recognized that several entities might have critical
information concerning required prior notice information. Therefore,
the interim final rule does not limit who can submit prior notice
information. The interim final rule continues to require electronic
submission of prior notice to FDA.
5. ``What Are the Consequences if You Do Not Submit a Product Identity
Amendment to Your Prior Notice?'' (Proposed Sec. 1.293)
FDA proposed that if a U.S. importer or U.S. purchaser, or their
U.S. agent, informed FDA in a prior notice that the submission would be
amended, but subsequently did not amend it appropriately and within the
applicable timeframe, then the prior notice would be inadequate for the
purposes of proposed Sec. 1.278(a). FDA clarified that the
consequences of inadequate prior notice are the same as the
consequences for failing to provide prior notice, e.g., the food is
subject to refusal if admission. FDA explained that the indication that
a prior notice would be amended tells us that the prior notice is
incomplete. FDA noted that without complete product identity, the
agency could not adequately determine whether to inspect or take other
action when the food arrives in the United States.
(Comments) Some comments object to the proposed provision that, if
the submitter of a prior notice indicates that an amendment to the
product identity will be submitted, but subsequently fails to do so,
the original prior notice will be deemed inadequate and the product
would not be allowed to enter. Some point out that FDA should not
penalize a submitter for anticipating an amendment and then not
amending the prior notice.
(Response) For the reasons set forth previously, FDA has eliminated
the requirement to provide product identity amendments.
[[Page 59015]]
6. ``What Must You Do if the Anticipated Arrival Information (Required
Under Proposed Sec. 1.288(k)(1)) Submitted in Your Prior Notice
Changes?'' (Proposed as Sec. 1.294)
FDA proposed to require the submitter to update anticipated arrival
information submitted in a prior notice, if the anticipated information
changes after the submission. FDA proposed that if the time of arrival
is expected to be more than 1 hour earlier or more than 3 hours later
than the anticipated time of arrival, the time of arrival must be
updated. FDA proposed that updates to the arrival information must be
submitted 2 hours before arrival (proposed Sec. 1.294).
a. General. (Comments) Many comments indicate that the window of
time for arrival updates is too small. Several comments suggest
changing the requirements for submitting updates for arrival
information. Suggested changes included expanding the window for
arrival to 2 hours and 6 hours before the anticipated arrival time and
6, 7, 8, and 18 hours after the anticipated arrival time. A few
comments state that notification of the day of arrival, not the time,
should be sufficient. Some comments state that updates to arrival
information should be allowed upon arrival at the border. One comment
objects to allowing only one update to arrival information. The comment
complains that this is very restrictive and that submitters must be
allowed to keep updating the ``prior notice of arrival'' without
worrying about the form being rejected.
Some comments point out that the owner, importer, and U.S. agent
often do not know the actual port of entry for a ship or airplane, the
time of entry, or changes in this information. For example, an air
shipment of seafood may be switched to a different plane, which arrives
at the U.S. port outside the anticipated arrival window. This may occur
during nonbusiness hours, before notification of the change can be
provided.
One comment suggests that exporters who choose to report to
specific border crossings identified by FDA, should not be required to
provide updates due to lateness in the time of arrival at the border.
One comment states that ambiguity on when updates can be submitted
might lead to confusion and inconsistent application of these
provisions. The comment expresses concern that some ports may take the
position that the update must be provided within the 4-hour window so
FDA will be informed that the shipment will not be arriving when
originally anticipated. Yet other ports may take the position that the
update requirements are satisfied as long as the update is received at
least 2 hours before arrival, regardless of how many hours or days it
arrives after the originally identified arrival time.
Some question how notifications that need to be amended and
subsequent amendments for numerous entries could assist FDA in
scheduling of inspections.
Some point out that carriers should continue to be able to change
ports of arrival, as necessary, to find a more expeditious route, based
on weather and/or traffic conditions. One comment states that
exporters/importers should be able to declare up to three possible
ports of entry that all fall under the jurisdiction of a single FDA
regional office for administrative and inspection purposes.
One comment suggests that a requirement to update the port of entry
could be viewed as limiting the port of entry, which is prohibited by
the statute.
One comment points out that the proposed rule is silent on changes
to border crossings, unlike changes in arrival time and suggested that
FDA clarify whether it needs to be notified of a change to the
anticipated border crossing or if any border crossing is acceptable.
b. Water. (Comments) One comment asks for a wider margin of
variability for the arrival of ocean-going vessels. Some comments state
that for ocean-going shipments, an update should not be required if the
actual arrival at the port of entry is not more than 24 hours before or
after the anticipated time of arrival specified in the prior notice.
One comment notes that because of the logistics and unpredictability of
ocean transport, it is not possible to accurately predict arrival time
of a carrier within the 4-hour window provided. One comment notes that
such tight time frames would increase the cost of the prior notice
process because the submitter will be forced to continuously check on
the status of the shipment to ensure that the arrival time is correct
all the way up to 2 hours before delivery. For ocean imports, vessel
arrival times may vary widely depending upon weather conditions,
scheduling, and loading changes. Vessels can be held or delayed at
various ports en route and importers are unlikely to be informed of
these changes. Some comments state that it is unrealistic for a sea
vessel to have to individually update hundreds or thousands of notices
when the vessel is delayed. Comments ask that FDA allow a single update
from a carrier to automatically update each prior notice associated
with food products on that vessel.
c. Air. (Comments) One comment states that the 2 hours for updates
is not practical for air shipments because air carriers often do not
inform importers of changes in arrival time until the cargo is close to
its destination. One comment notes that because of current air and
travel security procedures, arrivals are rarely at their scheduled
times.
d. Land/road. (Comments) A few comments indicate that with respect
to trucks, there will be circumstances where a driver cannot contact a
dispatcher to submit an arrival update, e.g., 2 a.m. The comments note
that a large amount of border truck traffic flows in the early morning/
mid-to-late evening to avoid rush-hour traffic in major centers.
However, shippers do not have a mechanism for submitting updates at
these times when there are unforeseen delays that prevent arrival
outside of the anticipated window. Comments state that FDA should
provide flexibility in the rule for these and similar circumstances
where, for legitimate reasons, it is not possible to provide an update.
Some comments express concern about current delays for trucks at
ports of entry, which may vary from a few minutes to 12 hours. The
comments note that, because it is necessary to submit updates when a
truck is outside the proposed time range for arrival, many trucks might
be forced to sit idly on the side of the road waiting for their proper
window when FDA will allow entry. Comments express concern that if a
shipment were to miss the original arrival time, they would be forced
to file an update and wait 2 hours to rejoin the line.
e. Land/rail. (Comments) For rail cargo, arrival times may vary
depending on scheduling and loading changes. Often, multiple rail cars
on one entry can be located at multiple locations across the rail yard.
Actual crossing times for those cars can vary widely depending on that
location and the ability of the rail to load and cross them. In these
cases, linking prior notice into the manifest could also allow the
carrier to provide electronic updates.
(Response) FDA agrees that there may be factors such as business
practices, weather, and traffic congestion that may impact the accurate
representation of the port, date, and time of arrival. Although the
interim final rule will continue to require submission of the
anticipated place, date, and time of arrival that is known to the
submitter, the interim final rule does not require an update to that
information, and prior notice will not be deemed inadequate if
[[Page 59016]]
the information changes after FDA has confirmed the prior notice for
review.
In sum, FDA has removed from the interim final rule all proposed
sections related to product identity amendments and arrival updates
(proposed Sec. Sec. 1.289 through 1.294) because of the following
situations:
[sbull] The timeframes are shortened substantially;
[sbull] The timeframes provide us with very little leeway in the
time we have to ``receive, review and respond'' to the prior notice
submissions. Thus, we can no longer permit changes to prior notice
without restarting the clock. FDA believes that the information
required by the interim final rule for prior notice should be
sufficiently fixed to be submitted within these new, shorter
timeframes;
[sbull] FDA has revised the required information in the interim
final rule, including the requirement to provide the estimated
quantity;
[sbull] If the estimated quantity, the anticipated arrival
information, or the planned shipment information change, the interim
final rule does not require that the prior notice be resubmitted; and
[sbull] Under the interim final rule, prior notice can be submitted
through ABI/ACS. The proposed provisions for amendments and updates to
a submission through ABI/ACS are not feasible after the submissions
have been electronically transmitted to OASIS and confirmed by FDA for
review.
(Summary of the interim final rule) FDA has removed from the
interim final rule all proposed sections related to product identity
amendments and arrival updates (proposed Sec. Sec. 1.289 through
1.294).
J. ``What Happens to Food That Is Imported or Offered for Import
Without Adequate Prior Notice?'' (Section 1.283) and ``What are the
Other Consequences of Failing to Submit Adequate Prior Notice or
Otherwise Failing to Comply With This Subpart?'' (Sec. 1.284 Proposed
as Sec. 1.278)
1. Inadequate Prior Notice (No Prior Notice, Inaccurate Prior Notice,
or Untimely Prior Notice) (Sec. 1.283(a) Proposed as Sec. 1.278(a))
FDA proposed in Sec. 1.278(a) that if an article of food is
imported or offered for import with no prior notice or inadequate prior
notice, the food shall be refused admission, as set out in under
section 801(m)(1) of the FD&C Act. Proposed examples of inadequacy were
untimely, inaccurate, or incomplete prior notice.
(Comments) Comments ask for clarification on what would cause a
prior notice to be incomplete or inadequate. Some comments express
concern that clerical errors or failure to provide minor information or
optional information could result in a refusal. Some comments suggest
that inadequate prior notice should be confined to material omissions
or major errors that would seriously impede the agency's ability to
review and appropriately respond to the notice. Comments ask whether
they would be notified about such deficiencies and given a chance to
correct them. Some comments object to not receiving feedback, before
reaching the port, when the prior notice is inadequate.
(Response) A prior notice is not complete if the required
information, as set forth in Sec. 1.281, has not been provided.
However, FDA agrees that feedback during the transmission process to
reduce mistakes and omissions that could result in unnecessary holdups
or refusals is a good idea. As explained earlier, both systems will
review and validate required information to minimize the likelihood
that clerical or typographical errors will result in an incomplete or
inaccurate prior notice. The systems will tell transmitters which
required information is still lacking or is recognized by the initial
validation as facially incorrect, to allow transmitters to make
corrections quickly. Moreover, the systems will not provide a
confirmation until required information is complete and facially valid.
Thus, if the initial incorrect information is not corrected and
submitted, the transmitter will not receive a prior notice
confirmation. FDA believes that this initial review/validation process
will help ensure that transmitters will not make inadvertent errors
that could result in a refusal. We advise, however, that this initial
review/validation process will not be capable of identifying all
possible errors. Thus, submitters and transmitters should understand
that confirmation does not mean that FDA has determined that the prior
notice is accurate in all respects.
If FDA determines that the prior notice is inaccurate after the
systems provide a confirmation, the article of food is subject to
refusal under Sec. 1.283(a)(1)(ii). FDA has the option of issuing the
refusal notice to the transmitter under Sec. 1.283(a)(1)(ii) before
arrival, assuming that FDA determines that the prior notice is
inaccurate before arrival and before the time period for the prior
notice has expired. If this happens, the transmitter must resubmit an
accurate prior notice in accordance with Sec. 1.282. This will remove
the refusal, although it will ``restart the clock'' in terms of when
prior notice must be submitted to FDA. Until we have had some
experience with prior notice review, we do not know how often we will
be able to determine prior notice inaccuracy before food arrives.
However, in certain situations, inaccuracy of prior notice cannot be
determined until the article of food is examined upon arrival.
(Comments) Comments suggest the regulation provide a waiver or
other mechanism to release foods that are safe, although the electronic
paperwork is not complete. Comments also suggest that the regulation
provide that, unless FDA has credible evidence or information that an
article of food presents a threat of serious adverse health
consequences or death to humans or animals, that FDA would not refuse
the article if the prior notice is incomplete or inadequate.
(Response) FDA does not agree that the regulation should provide a
waiver for refusal when some, but not all required, information has
been submitted. Given that the purpose of prior notice is to provide
FDA with better information sooner about food imports, including such a
waiver in the rule would seem to be antithetical to the provision. The
reference to the credible evidence standard in section 801(m) of the
FD&C Act, which appears in the part of section 801(m) that deals with
FDA review of prior notice after refusal, does not suggest otherwise.
Section 801(m)(2)(B)(ii) of the FD&C Act states that, when FDA reviews
a prior notice that has been submitted for a refused article of food,
FDA ``shall determine whether there is in the possession of [FDA] any
credible evidence or information indicating that such article presents
a threat of serious adverse heath consequences or death to humans or
animals.'' FDA does not agree that this provision means that FDA should
not refuse food with an inadequate prior notice under section 801(m)(1)
of the FD&C Act when FDA has no such credible evidence or information.
If that is what Congress intended, it would not have provided for
refusal of an article of food without adequate prior notice, as it did
in section 801(m)(1) of the FD&C Act.
(Comments) Comments note that the proposed rule did not set out
procedures for notifications regarding refusals and holds. Comments ask
who would be notified of refusal and when. Comments state that FDA
should notify importers, purchasers, or manufacturers that an article
is being held. One comment notes that carriers would have no way of
determining if prior notice had been satisfied until they arrived at
[[Page 59017]]
the border, but that they would be responsible. A comment also states
that FDA should engage the manufacturer or processor when the situation
involves a bioterrorism threat or event.
(Response) FDA and CBP have determined that the most appropriate
notification point is the carrier. When an article of food arrives at
the border without adequate prior notice (i.e., none, inaccurate, or
untimely), the carrier is the clearest immediate point of contact that
FDA and CBP staff at the border have. Thus, FDA or CBP intend to notify
the carrier that the article of food is refused due to inadequate prior
notice when the food is presented for CBP processing. It will be up to
the carrier to communicate the prior notice refusal to other persons or
firms. Neither FDA nor CBP currently has sufficient capability at the
border to communicate these refusals to other persons and still process
arrivals and examinations in a reasonable amount of time. We recognize
that this will affect carriers. We will be exploring ways to provide
notice to the transmitter and others, as well. FDA notes that if
carriers want to ensure, for any food they are transporting, that prior
notice has been submitted to FDA and confirmed for review, they can ask
that a copy of the PN confirmation be provided to them. Indeed, under
Sec. 1.279(g), for prior notices transmitted through the FDA PN System
Interface, the carrier must present the PN confirmation number to CBP
or FDA upon arrival.
We do not agree that FDA should provide routine advance notice that
it intends to refuse, examine, or hold food or has asked CBP to do so.
Although FDA and CBP are structuring implementation to ensure that
changes in ports and arrival times will not mean that food which should
be refused, held, or examined at the port of arrival slips past us, we
believe that routine advance notice could make it easier for the
unscrupulous to evade FDA requirements and import unsafe food. Finally,
whether we contact importers or manufacturers when there is a
bioterrorism threat or other food-related emergency will depend on the
particular circumstances.
(Comments) Some comments state that inconsistency in time and
changes in the port of arrival should not result in refusal of the
article. One comment asks whether a shipment that arrives one-half hour
late will be treated the same as one that arrives 12 hours late.
(Response) As explained elsewhere, changes in the anticipated
arrival information or planned shipment information will not be a basis
for a refusal under section 801(m)(1) of the FD&C Act if FDA wants to
examine the shipment; however, these changes may mean waiting while FDA
is notified by CBP and arranges to examine the shipment. This is more
likely to be the case with changes in ports and in arrivals that are
much later than the anticipated time.
When it comes to changes in arrival time, what matters is whether
the prior notice time was submitted sufficiently in advance of arrival,
in accordance with the timeframes set out in Sec. 1.279(a) of the
interim final rule. These timeframes are what FDA has determined are
necessary, as a general matter, to ensure that FDA has enough time to
receive, review, and respond to each prior notice appropriately.
However, Sec. 1.283(a)(1)(iii) of the interim final rule does provide
that if an article of food arrives early, before the prior notice time
has elapsed, its arrival will not be considered untimely if FDA has
already reviewed the prior notice, determined its response to the prior
notice, and advised CBP of that response. FDA believes there is no need
to make the food wait if the agency has been able to accomplish its
prior notice review sooner than anticipated.
(Comments) One comment asks for clarification on whether the
article would be refused if the classification of goods under the HTS
code has been changed by Customs officials after the shipment arrives.
(Response) If the FDA Product Code is accurate, then the article
will not be refused if the HTS code provided is later changed by CBP
during its review of the entry for CBP purposes.
(Comments) One comment asks whether there would be a penalty for
canceling and resubmitting a prior notice when the changes that need to
be made to the prior notice cannot be made by an amendment or an
update.
(Response) FDA has removed the provisions relating to amendments
and updates. If required information (with the exception of estimated
quantity, anticipated arrival information, and planned shipment
information) changes, e.g., the manufacturer is different than the one
originally submitted or the complete FDA product code is not accurate,
you should cancel the prior notice and must resubmit prior notice (if
you still plan to import or offer for import the article of food into
the United States). The timeframes set out in Sec. 1.279(a) of the
interim final rule will start to run again from the time the new prior
notice is confirmed for review by FDA.
a. Status and movement of refused foods (Sec. 1.283(a)(2)). FDA
proposed in Sec. 1.278(b) that if an article of food is imported or
offered for import is refused under section 801(m)(1) of the FD&C Act,
the food shall be held at the port unless directed to a secure facility
under proposed Sec. 1.278(c). Proposed Sec. 1.278(d) provided that
the person submitting prior notice was responsible for arranging for
movement of refused food. Proposed Sec. 1.278(e)(2) stated that
refused food could not be delivered under bond to the importer, owner,
or consignee. In the preamble to the proposed rule (68 FR 5432), we
explained that the provisions in title 19 of the U.S. Code relating to
imports for which entry cannot be made would apply.
i. General order status (Sec. 1.283(a)(2)(i)). (Comments) One
comment asks for confirmation that the provisions in title 19 of the
U.S. Code that apply to unentered merchandise would apply to articles
of food that have been refused under section 801(m)(1) of the FD&C Act.
(Response) FDA and CBP generally agree with this comment. However,
we have concluded that the interim final rule should specify that these
provisions will apply immediately upon refusal under section 801(m)(1)
of the FD&C Act because entry of an article of food refused under
section 801(m)(1) cannot be made for want of proper documents or other
cause, as described in section 490(a)(1)(C) of the Tariff Act of 1930,
as amended (19 U.S.C. 1490(a)(1)(C)). Accordingly, Sec. 1.283(a)(2)(i)
of the interim final rule specifies that an article of food that has
been refused under section 801(m)(1) of the FD&C Act shall be
considered general order. Thus, an article of food refused under
section 801(m)(1) meets the criteria of general order and must be
handled in accordance with sections 490 and 491 of the Tariff Act (19
U.S.C. 1490 and 1491) and CBP's implementing regulations at 19 CFR part
127 except as otherwise specified in 21 CFR part 1, subpart I.
ii. Locations for holding refused food (Sec. 1.283(a)(2)(ii)).
(Comment) One comment suggests using the existing system where
shipments may be held in place at the port for 14 days after which they
must be moved to general order.
(Response) After merchandise has arrived in the United States, the
Customs regulations prescribe a 15-calendar day period during which
entry must be made. If entry is not made during this time, the
merchandise then must be sent to general order inasmuch as entry has
not been completed (see 19 CFR 4.37, 122.50, or 123.10). However, as
described previously, this 15-calendar day period is not applicable to
articles refused under section 801(m)(1)
[[Page 59018]]
of the FD&C Act. Articles that are refused for inadequate prior notice
cannot be entered under any form of Customs entry. Those articles may
only be entered after adequate prior notice has been given.
(Comments) Several comments express concern about the impact of
refusal and holding at the port or secure storage on the quality,
value, and marketability of perishable fresh and frozen foods.
(Response) FDA expects that the changes in the interim final rule,
in particular the shortened timeframes, will mean fewer refusals. In
addition, since FDA will make every effort to review prior notices for
refused articles within these same timeframes, those responsible for
submitting prior notice have the ability to have the refusal removed in
a matter of a few hours. This, too, significantly reduces the impact of
the interim final rule on perishables. Finally, FDA also intends to
provide guidance to its staff on implementing and enforcing the prior
notice requirements, both during the initial transition period and
after that period ends.
FDA agrees that appropriate storage and holding conditions must be
considered for perishable and frozen foods refused for inadequate prior
notice. This means that if the article of food arrives in frozen
condition and has been transported under frozen conditions, the
facility used for holding the product must provide adequate frozen
conditions.
(Comments) Some comments express concern that there are
insufficient facilities at the U.S./Mexico ports to handle the
potential refusals during the produce season. One commenter disagrees
with FDA's statement in the preamble to the proposed rule that ``U.S.
Customs has identified a well-established network of storage facilities
that are secure.'' The comment pointed out that there is no
infrastructure of secure facilities at all ports. A comment noted that
there are few facilities at remote East and West ports along the U.S./
Canadian border that have temperature controlled environments and are
available around the clock. Another comment noted that there generally
is a lack of bonded cold storage facilities at borders and at airports.
One comment asks for information on the infrastructure of storage
facilities that would provide sanitation and temperature controls, as
well as security controls, including security against theft and
accidents. Some comments ask that FDA publish a list of the secure
facilities and the costs that FDA authorizes for the refused food.
(Response) FDA expects that the changes in the interim final rule,
in particular the shortened timeframes, will mean fewer refusals and
thus less need for storage for refused articles of food. Nevertheless,
FDA and CBP agree that the different ranges of storage available at
different ports need to be addressed. However, this issue needs to be
addressed in light of the determination, reflected in Sec.
1.283(a)(2)(i), that food refused under section 801(m)(1) of the FD&C
Act has ``general order'' status. Under customs laws and regulations,
general order merchandise must generally be held in a general order
warehouse (19 CFR 127.1). Customs regulations also empower the port
director, if merchandise requires specialized storage facilities that
are unavailable in a bonded facility, to direct the storage of the
merchandise by the carrier or by any other appropriate means (see 19
CFR 4.37(f), 122.50(f), or 123.10(f)). Additionally, fruit and other
perishables may be held by the port director in a bonded cold-storage
warehouse for a reasonable period, if it is probable that entry will be
made at an early date (19 CFR 127.28(c)).
FDA and CBP believe that general order storage qualifies as secure
facilities for purposes of the Bioterrorism Act, as it is subject to
the requirements set out at 19 CFR part 19. In particular, 19 CFR 19.9
contains controls that will ensure that refused food will be adequately
controlled while in storage and will not be released from general order
storage without CBP authorization.
(Comments) Several comments ask for clarification on secure
facilities. Comments ask whether a general-purpose warehouse in a FTZ
or a secure facility operated by the importer of record would be
considered a secure facility under the rule. Another comment suggests
that a clear chain of custody and fiduciary responsibility is required
when products are impounded. The comment recommends that appropriate
and sufficient impound storage facilities must be available before
enforcement begins.
(Response) As set out previously, food refused under section
801(m)(1) of the FD&C Act must be held in accordance with CBP's
regulations on general order merchandise.
(Comments) One comment suggests that if there is a failure to
submit adequate prior notice, the goods should be allowed to move to
the port of destination.
(Response) The prior notice is required to be submitted to and
confirmed by FDA before the article of food arrives at the port of
arrival. Food refused because of inadequate prior notice must be held
within the port of entry for the article unless directed by CBP or FDA.
Thus, refused food may be permitted to move to the port of destination.
iii. Movement of refused food (Sec. 1.283(a)(2)(iii)). (Comments)
One comment objects to making the carrier responsible by regulation for
movement of refused food. One comment suggested that FDA should be
responsible for movement of refused foods.
(Response) As set out in the preamble to the proposed rule (68 FR
5431 to 5432), we do not believe that section 801(m) of the FD&C Act
mandates that the government take physical control of refused food.
Rather, it limits the locations where refused food can be held and to
whom it can be delivered. Accordingly, FDA proposed that the carrier or
the person who submitted the prior notice arrange for the movement of
the refused food. FDA has decided to remove this limitation in the
interim final rule. Since we have removed limitations on who can
submit, submitters may now be foreign firms that may have difficulty
arranging to move food from overseas. We have concluded that we should
not impose any limitations on who may arrange for the movement of
refused foods. The interim final rule, Sec. 1.283(a)(2)(iii), does
maintain the requirement that movement of refused food occur under the
appropriate CBP custodial bond. The interim final rule further provides
that refused food must be taken directly to the designated facility,
shall not be entered, and shall not be delivered to any importer,
owner, or ultimate consignee. Failure to observe these conditions will
be a violation of the bond and may result in the imposition of
liquidated damages.
b. Segregation of refused foods (Sec. 1.283(a)(3)). (Comments)
Some comments state that FDA should release to the owner or importer
all of the other food or nonfood items in the shipment that are not
affected by the inadequate prior notice, in mixed or consolidated
shipments, if one or more food items has been refused because of
inadequate prior notice. One comment points out that shipments might
contain sealed containers of different foods from different sources.
One comment asks for clarification on how refused products will be
segregated from products that may continue when the products are on a
truck or in a rail car. The comment points out that this is a concern
for less-
[[Page 59019]]
than-truckload (LTL) carriers and small package carriers, who may have
thousands of overnight or expedited shipments on one trailer. The
comments express concern that importers and carriers of nonfood items
and of compliant food items would be unfairly penalized because of a
noncompliant entry. A comment states that Customs' regulations
authorize different portions of merchandise imported in a single
shipment and consigned to a single consignee to be cleared under
separate consumption entries (19 CFR 141.52). The Customs regulation in
19 CFR 141.52 also authorizes separate entries for any portions of a
shipment that will be covered by different types of entry, such as a
bonded warehouse entry.
(Response) FDA agrees. In the preamble to the proposed rule, FDA
recognized that food refused under section 801(m)(1) of the FD&C Act
may be located in the same container or truck with nonfood items or
food that is not refused under section 801(m). However, when mixed or
consolidated imported freight contains refused articles of food that
must be held, those articles that have been refused must be dealt with
in a manner that is consistent with the limitations in section 801(m)
of the FD&C Act. Therefore, FDA has added Sec. 1.283(a)(3) to the
interim final rule to state that if the article of food that is refused
is part of a shipment that contains articles that have not been refused
under section 801(m)(1) of the FD&C Act, the refused article(s) may be
segregated from the rest of the shipment. This segregation must take
place within the port of arrival or where the article is held, if
different and may be supervised by FDA or CBP.
c. Costs (Sec. 1.283(a)(4)). (Comments) Several comments ask who
would be responsible for storage and transportation costs. One comment
notes that the private parties to the importing transaction should be
liable for storage and transportation costs when food was refused. One
comment stated that the person submitting prior notice should be
responsible for these costs. Another comment asks FDA to include a
provision in the interim final rule that allows carriers to recover
removal, storage, or dispositions costs from the owner, purchaser, or
consignee.
(Response) Inasmuch as articles for which adequate prior notice has
not been received are considered general order merchandise, the
expenses of transportation and storage will be the responsibility of
those parties who are responsible under the general order statutes and
regulations. FDA has thus decided it is not necessary to include a
provision in the interim final rule that specifies which private
parties should be responsible for costs associated with refusal.
However, we have added Sec. 1.283(a)(4) to the interim final rule to
clarify that the U.S. Government is not responsible for these costs.
(Comments) Some comments ask that the regulation establish a damage
claim system for losses that occur when perishable foods are detained
for administrative reasons. Some comments suggest that FDA should
provide compensation for losses, including transportation and storage
fees, if the agency mistakenly holds imported product because of an
oversight in the government's processing of a prior notice.
(Response) FDA disagrees. The interim final rule provides in Sec.
1.283(a)(4) that neither FDA nor CBP will be responsible for
transportation, storage, or other expenses resulting from refusal. FDA
notes that it has never assumed responsibility for expenses associated
with refusal under the FD&C Act. Any claim against the government
arising under these activities shall be governed by the Federal Tort
Claims Act.
3. Post-refusal submissions and resubmissions (Sec. 1.283(c)).
(Comment) Comments ask FDA to clarify how inadequate notice could be
corrected and what steps must be taken to have the product released.
One comment suggests that the regulation should state that a shipment
with inadequate prior notice would be held only until the prior notice
is corrected and that the correction should be required within 24
hours. One comment suggests that food should be held for 24 hours and
then deemed released if FDA has not notified the person submitting the
notice that the food will be examined.
(Response) FDA agrees that the rule should specify procedures for
submitting or resubmitting a prior notice after refusal. These are set
out in Sec. 1.283(c)(i) and (c)(ii) in the interim final rule. FDA
does not believe it is necessary to impose any limit on how long a
person has to submit or correct a prior notice for refused foods since
an article of food refused under section 801(m)(1) of the FD&C Act is
considered general order merchandise. If no adequate prior notice is
received within the timeframes set out in 19 CFR part 127, title in the
refused food will vest in the United States and the refused food will
be eligible for general order sale or other disposition. Also note that
fruit, perishables, or merchandise liable to depreciation, may be
characterized as ``special merchandise'' per 19 CFR 127.28. Alternate
disposition, consistent with the general order statutes, is then
provided for.
The rules governing general order merchandise should be familiar to
those in the business of importing food, as they are rules of long
standing that are applied by CBP when no entry is made for food. FDA
believes that it is up to the persons involved in importing the food
into the United States to determine how quickly prior notice should be
submitted or resubmitted for food refused under section 801(m)(1) of
the FD&C Act.
FDA does not agree that the refusal should be deemed removed if the
transmitter does not hear from FDA within 24 hours that FDA will be
examining the product. Section 801(m)(2)(B)(i) of the FD&C Act states
that refused food may not be released until prior notice has been
submitted, reviewed by FDA, and determined by FDA to be adequate.
(Comments) Many comments state that the regulation should set
limits on the time FDA has to determine the adequacy of a prior notice
submitted after a food has been refused in order to ensure quick
release of refused food. One comment explains that such language would
be consistent with congressional intent as stated in the Conference
Report:
if an article of food were offered for import without providing the
required prior notice, the article of food would be held at the port
of entry until the Secretary has determined that notice is complete,
but it would not be held longer than the unelapsed period of prior
notice unless there is other basis for doing so.
(Conf. Rept. at H2858.)
(Response) FDA agrees in part. The rule provides in Sec.
1.283(c)(iii) that once the prior notice or corrections to a prior
notice have been submitted and confirmed by FDA for review, FDA will
make every effort to review and respond to the prior notice submission
within the timeframes set out in Sec. 1.279(a).
d. Export after refusal (Sec. 1.283(a)(5)). Although export under
the general order provisions of the title 19 of the U.S. Code was
discussed in the preamble to the proposed rule (68 FR 5432), the
proposed rule did not address exportation of food refused under section
801(m) of the FD&C Act.
(Comment) One comment asks whether export would be required for
food refused under section 801(m)(1) of the FD&C Act.
(Response) Export is not required for an article of food refused
under section 801(m)(1) of the FD&C Act; it is, however, an option for
an article of food refused under Sec. 1.283(a) and as permitted under
CBP's general order
[[Page 59020]]
provisions unless FDA or CBP were to seize or administratively detain
the food under other authority. We have added Sec. 1.283(a)(5) to the
interim final rule to make this clear. If an article of food that has
been refused admission under section 801(m)(1) of the FD&C Act is
exported, the prior notice should be cancelled within 5 calendar days
of exportation. FDA and CBP note that any time an article of food
leaves the country after arriving at the port of arrival, it is
considered an export for CBP purposes, and the applicable line or entry
is deleted and, if prior notice was transmitted with the entry via ACS,
the prior notice will be cancelled as well. This is true regardless of
whether the intent is to re-import the article, even if the re-import
occurs after a brief period of time.
To import that article of food, the prior notice must be re-
submitted, and a new entry must be made, and the new prior notice will
have the effect of ``restarting the clock'' in terms of when the prior
notice has been submitted to FDA. If prior notice had been transmitted
via the FDA Prior Notice System Interface, the prior notice is not
automatically canceled when the article of food is exported. The only
way to cancel a prior notice that was transmitted via the FDA Prior
Notice System Interface is to use that system to explicitly cancel the
prior notice.
e. Abandoned merchandise (Sec. 1.283(a)(6)). (Comment) One comment
states that the regulation should address what happens if refused food
is not claimed by the owner, purchaser, or consignee.
(Response) The interim final rule, in Sec. 1.283(a)(6), provides
that if no prior notice or correction is received in a timely fashion
or export has not occurred, the food shall be dealt with as set forth
in CBP regulations relating to be general order merchandise, except
that it may only be sold for export or destroyed as agreed to by CBP
and FDA.
5. International Mail (Sec. 1.283(e))
Although the proposed rule applied to food imported or offered for
import by mail, see, e.g., 68 FR 5436, there were no proposed
provisions specific to refusal of food arriving by international mail.
(Comments) No comments submitted comments specific to refusal of
food arriving by international mail were submitted.
(Response) FDA believes that separate refusal procedures are
necessary for food arriving by mail given differences between mail and
cargo. FDA believes that these procedures are authorized under section
701(b) of the FD&C Act because they are necessary to ensure that the
refusal provisions of section 801(m)(1) of the FD&C Act can be
efficiently and effectively applied to food that arrives by mail. The
interim final rule thus provides in Sec. 1.283(e) that in the case of
food arriving by international mail with inadequate prior notice, the
parcel will be held by CBP for 72 hours for FDA inspection and
disposition. If the parcel is refused and there is a return address,
the article may be returned to sender stamped ``No Prior Notice--FDA
Refused.'' If there is no return address or FDA determines that the
articles of food in the shipment appear to present a hazard, FDA may
dispose of or destroy the parcel at its expense. If FDA does not
respond within 72 hours of the CBP hold, CBP will return the parcel to
the sender or, if there is no return address, destroy the parcel, at
FDA expense.
2. Food Carried by or Otherwise Accompanying an Individual (Sec.
1.283(b))
Although the proposed rule applied to food imported or offered for
import in baggage that was not brought in by a traveler for personal
use, there were no proposed provisions specific to refusal of food in
baggage in the proposed rule.
(Comments) No comments submitted comments specific to refusal of
food carried by or otherwise accompanying an individual.
(Response) FDA believes that separate refusal procedures are
necessary for food carried by or otherwise accompanying an individual
given differences between these kinds of imports and cargo. FDA
believes that these separate procedures are authorized under section
701(b) of the FD&C Act because they are necessary to ensure that the
refusal provisions of section 801(m)(1) of the FD&C Act can be
efficiently and effectively applied to food carried by or otherwise
arriving with an individual.
(Interim final rule) Section 1.279(f) provides that the individual
who carries or is accompanied by food must have a copy of the
confirmation of prior notice when arriving in the United States.
Section 1.283(b) provides that if there is inadequate prior notice or
the individual cannot provide FDA or CBP with a copy of the PN
confirmation, the article of food is subject to refusal. If before
leaving the port, the individual cannot arrange to have the refused
food held at the port or exported, the article of food may be
destroyed.
4. FDA Review After Refusal, Sec. 1.283(d)
(Comments) Several commenters suggest there should be an efficient
appeal mechanism in the event that the submitter, importer, owner, or
consignee believes that food products have been inappropriately refused
and held.
(Response) Although such a process is not required by Sec. 801(m)
of the FD&C Act, FDA agrees that having a review process designed to
address prior notice issues is warranted. Section 1.283(d) of the
interim final rule sets out parameters under which a request may be
submitted to obtain FDA review of whether the article is subject to the
requirements of this subpart under Sec. 1.276(b)(5) (i.e., meets the
interim final rule's definition of food) or Sec. 1.277 (i.e., is
within the scope of the interim final rule) or whether the contents of
a prior notice submission were accurate. The interim final regulation
provides that a request must be submitted within 5 days of refusal and
that FDA will respond within 5 days. FDA notes that if the product is
perishable, the sooner the request is submitted, the sooner FDA will
respond. FDA chose these timeframes because they are consistent with
the timeframes for perishables contemplated under the new
administrative detention provisions at Sec. 304(h) of the FD&C Act, 21
U.S.C. 334(h). After review, if FDA determines that the article is not
subject to prior notice or that the prior notice submission is
accurate, it will notify the requester, the transmitter, and CBP that
the food is no longer subject to refusal under section 801(m)(1) of the
FD&C Act.
5. Prohibition on Delivery Outside of the Port, Sec. 1.283(f)
(Comments) One commenter suggests following existing procedures and
allowing refused foods to be held at the importer's place of business,
quarantined and considered to be undeliverable, but held for sampling
and release. Another commenter asks for clarification on whether
product could be shipped to the importer, purchaser, or consignee's
facility, if prior notice is inadequate.
(Response) The statute explicitly states that an article of food
that is refused under the provisions of section 801(m)(1) must be held
and shall not be delivered to the importer, owner, or consignee. See
Sec. 801(m)(2)(B)(i). Thus, the provisions of the Bioterrorism Act
specifically override certain existing procedures that apply when food
is subject to refusal under Sec. 801(a) of the FD&C Act. In accordance
with the new procedures specified in the Bioterrorism Act, Sec.
1.283(de) of the interim final rule provides that, notwithstanding
Sec. 801(b) of the FD&C Act, 21 U.S.C. 381(b), an
[[Page 59021]]
article of food refused under Sec. 801(m)(1) may not be delivered to
the importer, owner, or ultimate consignee or transferred by any person
from the port or secure facility until prior notice is submitted to FDA
in accordance with this subpart, FDA has examined the prior notice, FDA
has determined that the prior notice is adequate, and FDA has notified
CBP and the transmitter that the article of food no longer is subject
to refusal of admission under Sec. 801(m)(1) of the FD&C Act. After
this notification, entry may be made in accordance with law and
regulation.
6. Relationship to Admissibility (Sec. 1.283(g))
The proposed rule (Sec. 1.278(f)) differentiated between a refusal
of admission under section 801(m)(1) of the FD&C Act (prior notice) and
refusal of admission under section 801(a) of the FD&C Act or other U.S.
laws. The proposed rule clarified that a determination that an article
of food is no longer subject to refusal of admission under section
801(m)(1) of the FD&C Act does not mean that it will be admitted to the
United States under other provisions of the law that apply to
admissibility determinations.
(Comments) One comment asks for clarification on whether a shipment
will have to remain at the port and be subject to inspection until
after FDA receives and reviews the entry documentation through OASIS.
The comment points out that in most cases, OASIS review occurs after
the goods have at least been conditionally released. Other comments
state FDA should conduct its review under section 801(a) of the FD&C
Act at the same time it is doing its prior notice review. Another
comment asks what would happen if a prior notice was determined to be
inadequate as part of FDA's review under section 801(a) of the FD&C
Act.
(Response) Section 1.283(g) provides that FDA's determination that
an article of food is no longer refused under section 801(m)(1) of the
FD&C Act is different than, and may come before, determinations of
admissibility under other provisions of the FD&C Act or other U.S.
laws. As a general matter, FDA intends to use prior notice information
to determine what products should be inspected upon arrival; we do not
intend to make admissibility decisions under section 801(a) of the FD&C
Act until entry has been made. The refusal under section 801(m)(1) of
the FD&C Act will be removed after prior notice has been received,
reviewed, and responded to by FDA, and there will be no further
requirement to hold at the port for purposes of section 801(m). As a
general matter, at that point, the procedures under section 801(a) and
(b) of the FD&C Act would apply. If FDA discovers that prior notice was
inadequate after an article leaves the port of arrival but before it
makes a decision to ``may proceed'' or release an article of food under
section 801(a) of the FD&C Act, FDA may refuse the article under
section 801(m)(1) and ask CBP to issue a notice of redelivery.
Interim Final Rule (Sec. 1.283)
FDA revised the proposed rule to provide for more specificity,
clarify the status of refused food, and provide a mechanism for FDA
review after refusal. In the interim final rule, FDA identifies the
consequences and procedures for the following situations:
a. Inadequate Prior Notice (No, inaccurate, or untimely prior
notice) (Sec. 1.283(a)(1)). The article is subject to refusal under
section 801(m) and, if refused, unless immediately exported with CBP
concurrence, must be held.
b. Status and movement of refused food (Sec. 1.283(a)(2)). A
refused article of food shall not be delivered to the importer, owner,
or ultimate consignee until FDA has examined the prior notice,
determined the adequacy of the prior notice and notified the
transmitter and CBP that the article of food covered by the prior
notice is no longer refused. A refused food is considered general order
merchandise under section 490 of the Tariff Act of 1939, as amended.
The refused food must be moved under appropriate custodial bond. FDA
must be notified of the location where the food has been or will be
moved within 24 hours of refusal. The food must be taken directly to
the designated location, shall not be entered, and shall not be
delivered to any importer, owner, or ultimate consignee.
c. Segregation (Sec. 1.283(a)(3)). If a refused food is part of a
shipment that contains other articles, the refused food may be
segregated from the rest of the shipment within the port of arrival or
where it is held, if different. FDA or CBP may supervise the
segregation.
d. Costs (Sec. 1.283(a)(4)). Neither FDA nor CBP will be liable
for transportation, storage, or other expenses resulting from refusal.
e. Post-refusal submissions and resubmissions (Sec. 1.283(c)). If
an article of food is refused for no or inaccurate prior notice, the
prior notice must be submitted to and confirmed by FDA for review.
f. Export after refusal (Sec. 1.283(a)(5). A refused food may be
exported with CBP concurrence and supervision. If a refused food is
exported, the prior notice should be cancelled within 5 days of
exportation.
g. No post refusal submission or request for review (Sec.
1.283(a)(6). If no prior notice, correction, or request for FDA review
is submitted in a timely fashion after an article of food is refused,
the food will be dealt with as set forth in CBP regulations relating to
general order merchandise. It may only be sold for export or destroyed
as agreed to by CBP and FDA.
h. International mail (Sec. 1.283(e)). In the case of food
arriving by international mail, if prior notice is inadequate, the
article will be held by CBP for 72 hours for FDA inspection and
disposition. If the article of food is refused and there is a return
address, the parcel may be returned to sender. If there is no return
address or the article of food in the parcel appears to present a
hazard, FDA may dispose of or destroy it at FDA's expense. If FDA does
not respond within 72 hours of the CBP hold, CBP will return the parcel
back to the sender or, if there is no return address, may destroy the
parcel at FDA's expense.
i. Food carried by or otherwise accompanying an individual (Sec.
1.283(b)). The individual must have a copy of the confirmation when
entering the United States. If there is inadequate prior notice, the
article will be refused entry and may be held at the port or exported.
If arrangements for holding or export cannot be made, the food may be
destroyed.
j. FDA review after refusal (Sec. 1.283(d)). After refusal, the
submitter, importer, owner, or ultimate consignee may submit a written
request asking FDA to review whether the article is subject to the
requirements of this subpart under Sec. Sec. 1.276(b)(5) and 1.277, or
whether the prior notice submission is accurate. The interim final rule
also sets out procedures and timeframes for this review process.
k. Prohibition on delivery outside of the port (Sec. 1.283(f)). A
refused article of food may not be delivered to the importer, owner, or
ultimate consignee until FDA has examined the prior notice, determined
the adequacy of the prior notice and notified the transmitter and CBP
that the article of food covered by the prior notice is no longer
refused. When food that has been refused under section 801(m)(1) of the
FD&C Act is held at the port or secure facility, it may not be
transferred by any person from the port or secure facility until prior
notice is submitted to FDA in accordance with this subpart, FDA has
examined the prior notice, FDA has determined that the prior notice is
adequate, and FDA has notified CBP
[[Page 59022]]
and the transmitter that the article of is food no longer refused.
l. Relationship to admissibility (Sec. 1.283(g)). A determination
that an article of food is no longer subject to refusal under section
801(m)(1) of the FD&C Act is different than, and may come before,
determinations of admissibility under other provisions of the FD&C Act
or other U.S. laws. A determination that an article of food is no
longer subject to refusal under section 801(m)(1) of the FD&C Act does
not mean that it will be granted admission under other provisions of
the FD&C Act or other U.S. laws.
6. What Are the Other Consequences of Failing To Submit Adequate Prior
Notice or Otherwise Failing To Comply With This Subpart? (Sec. 1.284)
In accordance with section 301(ee) of the FD&C Act, the proposed
rule (Sec. 1.278(g)) provided that it is a prohibited act to import or
offer for import an article of food without complying with the
requirements of section 801(m) of the FD&C Act, or otherwise to violate
any requirement under section 801(m). In addition, the proposed rule
provided that the United States can bring a civil action in Federal
court to enjoin persons who commit prohibited acts and bring a criminal
action in Federal court to prosecute persons who commit prohibited
acts. In addition, under 21 U.S.C. 335a, FDA can seek debarment of any
person who has been convicted of a felony relating to importation of
food into the United States.
(Comments) Some comments ask that FDA provide a transition period
for implementing the regulation, during which a submitter would not be
prosecuted for providing inadequate or incomplete prior notice.
(Response) The requirements of the statute do not allow for this
kind of a transition period. FDA will, however, provide guidance on
enforcement to its staff containing the agency's policies on
injunctions, prosecution, and debarment related to failure to provide
timely and accurate prior notice, as well as the agency's policies
regarding refusals under section 801(m)(1) of the FD&C Act and holds
under section 801(l). FDA intends to include a transition period in
this guidance, during which it will emphasize education to achieve
compliance. While FDA will nonetheless be authorized to take various
types of enforcement action for violations of the prior notice
requirements, this planned transition period will allow FDA to focus
its resources on the most appropriate circumstances. While this
transition period is important, FDA also intends to provide guidance to
its staff on enforcing the prior notice requirements after a transition
period. These guidance documents will be made available to the public,
and FDA will publish a notice of availability in the Federal Register.
This enforcement discretion with regard to refusals of foods under
801(m) and 801(l) will not impact FDA's ability to take other actions
that may be necessary, such as conducting inspections for food safety
and security concerns, determining whether an article of food is
subject to refusal under section 801(a) of the FD&C Act at the port of
entry, or taking any other action under the FD&C Act. FDA may consider
the failure to provide prior notice as a factor in determining whether
to examine the product at destination. In addition, it will not impact
upon CBP's ability to assess penalties under 19 U.S.C. 1595a(b) or to
take enforcement action under any other authority.
(Interim final rule) Section 1.284 of the interim final rule
establishes a separate provision to cover the other consequences of
failing to submit adequate prior notice or otherwise comply with 21 CFR
part 1, subpart I. The interim final rule provides that the failure of
a person who imports or offers for import an article of food to submit
prior notice is a prohibited act under section 301(ee) of the FD&C Act
(21 U.S.C. 331(ee)). The interim final rule also sets out the civil,
criminal, and debarment actions that the United States may bring
against persons who commit a prohibited act.
K. ``What Happens to Food That Is Imported or Offered for Import From
Unregistered Facilities That Are Required To Register Under 21 CFR Part
1, Subpart H?'' (Sec. 1.285)
As set out in the preamble to the interim final rule on
registration of food facilities under section 415 of the FD&C Act, FDA
has decided to include in the prior notice interim final rule the
provisions that address what happens when imports from unregistered
foreign food facilities arrive at the port. FDA decided this course was
most appropriate because, in the first instance, we will be using the
prior notice review process to ensure that foreign food facilities are
registered. Moreover, FDA believes that the procedures for dealing with
food from unregistered foreign facilities should be, as they were in
the proposed registration rule, identical in most respects to the prior
notice procedures, and thus it makes sense to consolidate them in one
regulation.
(Comments) Comments on the registration proposed rule are described
in the preamble to the interim final registration rule, published
elsewhere in this issue of the Federal Register.
(Response) Responses to comments on the registration proposed rule
are described in the preamble to the interim final registration rule,
published elsewhere in this issue of the Federal Register.
7. Interim Final Rule (Sec. 1.285)
FDA revised the proposed rule to provide for more specificity, to
clarify the status of food under hold, and to provide a mechanism for
FDA review after a hold is imposed.
a. Failure to register (Sec. 1.285(a) and (b)). If an article of
food from a foreign manufacturer that is not registered as required
under section 415 of the FD&C Act (21 U.S.C. 350d) and 21 CFR part 1,
subpart H, is imported or offered for import into the United States,
the food is subject to refusal of admission under section 801(m)(1) of
the FD&C Act and 21 CFR 1.283(a) for failure to provide adequate prior
notice. The failure to provide the correct registration number of any
foreign manufacturer if registration is required under section 415 of
the FD&C Act and 21 CFR part 1, subpart H, renders the identity of that
facility incomplete.
If an article of food from a foreign facility that is not
registered as required under section 415 of the FD&C Act and 21 CFR
part 1, subpart H, is imported or offered for import, it is subject to
a hold within the port of entry for the article unless directed by CBP
or FDA under section 801(l) of the FD&C Act unless exported.
b. Status and movement of held food. An article of food under hold
is considered general order merchandise under section 490(a) of the
Tariff Act of 1930, as amended. The food must be moved under
appropriate custodial bond. FDA must be notified of the location where
the food has been or will be moved within 24 hours of the hold. It must
be taken directly to the designated facility, shall not be entered, and
shall not be delivered to any importer, owner, or ultimate consignee.
c. Segregation (Sec. 1.285(d)). If a food placed on hold is part
of a shipment that contains other articles, the food may be segregated
from the rest of the shipment within the port of arrival or where the
article is held, if different.
d. Costs (Sec. 1.285(e)). Neither FDA nor CBP will be liable for
transportation, storage, or other expenses resulting from a hold.
e. FDA review after hold (Sec. 1.285(j)). After an article of food
has been placed
[[Continued on page 59024]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 59024-59073]] Prior Notice of Imported Food Under the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002
[[Continued from page 59023]]
[[Page 59023]]
on hold, prior notice submitter, the importer, owner, or ultimate
consignee may submit a written request asking FDA to review whether the
foreign facility is subject to the requirements of section 415 of the
FD&C Act. The interim final rule also sets out procedures and
timeframes for this review process.
f. Export after refusal (Sec. 1.285(f)). A food under hold may be
exported with CBP concurrence and supervision.
g. No registration or request for review (Sec. 1.285(g)). If no
registration number is obtained from FDA or no request for FDA review
is submitted in a timely fashion after a food is placed under hold, the
food will be dealt with as set forth in CBP regulations relating to
general order merchandise. It may only be sold for export or destroyed
as agreed to by CBP and FDA.
h. International mail (Sec. 1.285(k)). In the case of food
arriving by international mail, if required registration is lacking,
the article will be held by CBP for 72 hours for FDA inspection and
disposition. If the food is held and there is a return address, the
parcel may be returned to sender. If there is no return address or the
article of food in the parcel appears to present a hazard, the FDA may
dispose of or destroy it, at FDA's expense. If FDA does not respond
within 72 hours of the CBP hold, CBP may return the parcel to the
sender or, if there is no return address, destroy the parcel at FDA's
expense.
i. Food carried by or otherwise accompanying an individual (Sec.
1.285(h)). If placed on hold, the individual may arrange to have the
food held at the port or exported. If such arrangements cannot be made,
the food may be destroyed.
j. Post-refusal and post-hold submissions (Sec. 1.285(i)). To
resolve a refusal if an article of food has been refused under Sec.
1.285(a), the facility must be registered and a registration number
obtained from FDA. The prior notice must then be submitted in
accordance with Sec. 1.283(c).
To resolve the hold if an article of food is held under Sec.
1.285(b) the foreign facility must be registered and a registration
number obtained from FDA. FDA must be notified of the applicable
registration number in writing by mail, express courier, fax, or e-
mail. The notification must provide the name and contact information
for the person providing the registration information. The location for
delivering this notification will be listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see
Food Facility Registration. If FDA determines that the food should no
longer be held, it will notify the person providing the information and
CBP the food is no longer subject to hold under section 801(l).
k. Prohibition on delivery outside of the port (Sec. 1.285(l)). An
article of food under hold may not be delivered to the importer, owner,
or ultimate consignee or transferred by any person from the port or the
secure facility until registration is complete and FDA has notified CBP
that the article of food is no longer under hold.
l. Relationship to other admissibility provisions (Sec. 1.285(m)).
A determination that an article of food is no longer subject to hold
under section 801(l) of the FD&C Act is different than, and may come
before, determinations of admissibility under other provisions of the
FD&C Act or other U.S. laws. A determination that an article of food is
no longer subject to hold under section 801(l) does not mean that it
will be granted admission under other provisions of the FD&C Act or
other U.S. laws.
IV. Issuance of an Interim Final Rule and Effective Date; Comments
We are issuing this rule as an interim final rule, with an
opportunity for public comment. Although we are seeking comment on this
interim final rule, it will be in effect on December 12, 2003. Thus,
its requirements will be in effect and have the force and effect of law
from that date until they are modified by the issuance of a final rule.
FDA will, however, provide guidance on enforcement to its staff
containing the agency's policies on injunctions, prosecution, and
debarment related to failure to provide timely and accurate prior
notice, as well as the agency's policies regarding refusals under
section 801(m)(1) of the FD&C Act and holds under section 801(l). FDA
intends to include a transition period in this guidance, during which
it will emphasize education to achieve compliance. While FDA will
nonetheless be authorized to take various types of enforcement action
for violations of the prior notice requirements, this planned
transition period will allow FDA to focus its resources on the most
appropriate circumstances.
The comment period on this interim final rule will open today for a
period of 75 days. Moreover, to ensure that those that comment on this
interim final rule have had the benefit of our outreach and educational
efforts and have had experience with the systems, timeframes, and data
elements, FDA intends to reopen the comment period for an additional 30
days in March 2004. In addition, this date will coincide with the
issuance of the plan by FDA and CBP relating to timeframes.
FDA invites public comment on this interim final rule. The agency
will consider modifications to this interim final rule based on
comments made during the comment period. Interested persons may submit
to the Division of Dockets Management (see ADDRESSES) written or
electronic comments regarding this interim final rule by [75 days after
December 12, 2003.]. Two copies of any comments are to be submitted,
except that individuals may submit one copy. Submit one electronic
copy. Submit electronic comments to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov/dockets/ecomments
.
Comments are to be identified with the docket number found in
brackets in the heading of this document. Received comments may be seen
in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday
through Friday.
As noted, this regulation is effective on December 12, 2003. FDA
will address comments received and confirm or amend the interim final
rule in a final rule. The agency, however, will not consider any
comments that have been previously considered during this rulemaking.
V. Analysis of Economic Impacts
A. Final Regulatory Impact Analysis
FDA has examined the economic implications of this interim final
rule as required by Executive Order 12866. Executive Order 12866
directs agencies to assess all costs and benefits of available
regulatory alternatives and, when regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). Executive Order 12866
classifies a rule as significant if it meets any one of a number of
specified conditions, including: Having an annual effect on the economy
of $100 million, adversely affecting a sector of the economy in a
material way, adversely affecting competition, or adversely affecting
jobs. A regulation is also considered a significant regulatory action
if it raises novel legal or policy issues. FDA has determined that this
interim final rule is a significant regulatory action as defined by
Executive Order 12866.
Comments on the economic analysis of the proposed prior notice rule
covered several major issues, including: The costs estimated to learn
the rule, the costs to coordinate prior notice information, the costs
of filing through a broker, and the costs of delayed arrival (including
truck time costs and the costs
[[Page 59024]]
for lost value of products). We address all comments relevant to the
economic analysis in detail as each issue appears in the analysis.
1. Need for Regulation
Section 307 of the Bioterrorism Act of 2002 requires prior notice
of all food imported or offered for import into the United States. If
FDA fails to issue a final regulation by December 12, 2003, section 307
of the Bioterrorism Act provides for a default minimum period of
advance notice that is not fewer than 8 hours and not more than 5 days
before an article of food is imported or offered for import into the
United States. This regulation is needed to implement the statutory
provisions.
2. Interim Final Rule Coverage
Unless excluded, this interim final rule applies to all FDA-
regulated food for human and animal consumption that is imported or
offered for import into the United States. This includes food that is
imported for export, food transshipped through the United States to
another country, and food for use in an FTZ. This interim final rule
does not apply to food that is imported then exported from the port of
arrival without leaving the port; meat, poultry, or egg products that
are under the exclusive jurisdiction of USDA; food carried by or
otherwise accompanying an individual when entering the United States
for personal use. For the purpose of this rule, the definition of food
does not include food contact substances (including food packaging),
pesticide chemicals, or pesticide chemical residues.
As required by the Bioterrorism Act, the notification must provide
the identity of the article, manufacturer, shipper, and grower (if
known), the FDA Country of Production, the country from which the
article is shipped, and the anticipated port of arrival. In addition,
the notification must provide the identity of the person who submits
and transmits the prior notice, the importer, the owner, the consignee,
the carrier, the CBP entry identifier, anticipated time and date of
arrival, anticipated shipment information, and, if the food has been
refused admission and required to be held, the location where it is
held.
For food shipments arriving in the United States through
international mail, notification of the import must be sent before the
article is mailed. Only the prior notice information that is relevant
to that type of shipment must be submitted for articles of food
arriving by international mail. Notification of mail entries will be
received only through the FDA PN System Interface. For food carried by
or otherwise accompanying an individual when entering the United States
that is not for personal use, such as food for sale that is brought
into the United States in baggage, prior notice must be submitted
through the FDA PN System Interface.
a. Number of establishments affected. Using 2001 fiscal year
information from OASIS (industry codes 02 through 52, 54, and 70
through 72), FDA has estimated that there are 77,427 importers and
consignees who receive imported food shipments. Commenters were
concerned that this importer number represented only importers of
edible food products, and not such items as food packaging. These
commenters concluded that FDA's estimate was too low. OASIS does
include all importers of food, for both humans and animals, and food-
related items and therefore does not underestimate the number of food
importers. Also, because food contact substances, including food
packaging, are excluded from interim final rule coverage, our estimate
of importers should sufficiently account for food importers that might
not have been formally captured by the OASIS data.
Comments also indicated that they wanted an expansion of the
persons allowed to submit prior notice. The proposed rule had
restricted the submission of prior notice to U.S. importers or U.S.
purchasers (or their brokers). For the interim final rule, FDA has
authorized the submission of prior notice by any person.
Using information from the OASIS system, FDA has determined that
there are approximately 100,000 foreign manufacturers/processors of an
article of food. We assume here that foreign manufacturer/processor
costs associated with this interim final rule will be spread across the
supply chain; we therefore do not directly address the distribution of
costs. We think it probable, however, that most of the ongoing costs of
this interim final rule will be borne by consumers in the form of
higher retail food prices.
i. New and closing importer establishments. In addition to the U.S.
importers currently operating, in future years some new import
businesses will open and some existing import businesses will close.
According to the Small Business Administration, in 2001 about 10
percent of all businesses were new and 10 percent of all businesses
closed. These new importers will have to become familiar with the FDA
prior notice system, and some may need to obtain computer equipment and
Internet access to comply with prior notice requirements.
ii. Baseline. FDA considers the baseline for this analysis the
state of the world before the Bioterrorism Act, and we assume this
baseline has zero costs and benefits.
b. Current state of the world. The majority of the information that
will be required by section 307 of the Bioterrorism Act now is supplied
at the time of entry by a customs broker or self-filer, and usually is
submitted electronically. Although importers already must notify CBP of
entries, the Bioterrorism Act requires notification to FDA before the
food shipment reaches the U.S. port of arrival. This requirement will
change the current practice of notifying CBP and then subsequently FDA
upon arrival (and as long as 15 days past arrival based on the time the
consumption entry may be filed with CBP).
OASIS showed that approximately 2.9 million food entry lines were
imported via sea and air transportation in fiscal year 2002.
Information on food-importing practices indicates that importers
bringing food products into the United States by vessel notify CBP and
FDA before their arrival. Importers using vessels as their mode of
transport for products can notify CBP well in advance of the actual
shipping date, but CBP will not certify the entry until 5 days before
the vessel is expected to dock at a U.S. port. FDA is notified of the
shipment then, through CBP, as early as 5 days before the vessel's
arrival at a U.S. port.
Importers bringing food products in by airplane can notify CBP of
their intent to import food into the United States no more than 24
hours before the scheduled flight departure time, but cannot certify
their cargo manifests with CBP until the airplane has taken off from
the airport of the exporting country (``wheels-up''). FDA is notified
after ``wheels up'', once the import entry has been filed and certified
by CBP. CBP has informed FDA that they receive flight information for
87.6 percent of the flights at the time of ``wheels up.''
OASIS showed that around 2.3 million entry lines of food were
imported into the United States via ground transportation in fiscal
year 2002. The usual practice today for food brought in by truck or
train (products coming directly from Canada or Mexico) is not to notify
CBP until arrival. (Filers can certify their entry data up to 24 hours
before arrival, but CBP does not give a ``screening response'' to the
entry until actual arrival.) Even though these importers likely have
the orders and invoices for these products in advance,
[[Page 59025]]
they do not currently notify CBP until the arrival of the food or
thereafter.
The constraints prior notice places on those wishing to import food
into the United States depend on: When the order for the product is
placed, the minimum prior notice submission time, and the
manufacturing/processing or other location where the product to be
imported is held before importing into the United States. A longer
prior notice submission time would change more business practices for
food operations nearer to the U.S. border than for those farther away
from the United States. For example, an 8-hour prior notice minimum
timeframe will not significantly affect most food shipments imported
from China, because they are likely to come by sea or by air and the
length of the journey by either mode of transportation is longer than 8
hours. If the food to be imported is instead located in Mexico or
Canada, and the prior notice submission timeframe is 8 hours, there is
a greater likelihood that the food is located less than 8 hours driving
time from the U.S. border, and transporting some shipments to the U.S.
buyer of the product within a specified time would be much more
difficult. Whereas there is no expectation that a product ordered from
China will arrive in the United States in 8 hours, in the case of some
products from Mexico or Canada, normal business practices do include
the expectation of a quick or rushed delivery to a U.S. destination;
this expectation may not be met for some prescribed minimum prior
notice submission timeframes.
Given the standard importing business practices described in the
previous paragraphs, and given the restraints that prior notice places
on food importers using land transportation (and in some cases air
transportation), we classify options for this analysis by minimum prior
notice time based on costs for those shipments of imported food that
arrive in the United States by ground and, in longer minimum submission
time options, by air transportation as well. Therefore, while we
include food shipments imported by vessel in the learning,
coordinating, and submitting costs of each option considered, we do not
calculate a lost product value or waiting time for products arriving by
vessel because they are not constrained by the minimum prior notice
timeframes considered in any of the options. Highly perishable food
products are generally not imported to the United States by sea.
3. Regulatory Options Considered
Comments on the estimates used in the analysis of the proposed rule
indicated that FDA should reexamine the following factors: (1) The time
it takes to learn about the prior notice rule; (2) the time it takes to
coordinate information for prior notice submission; (3) the number of
entries expected yearly; (4) the lost value for perishable products;
(5) the cost of carrier waiting time; and (6) the costs to current
BRASS users. These comments have led FDA to assess additional options,
and revise the estimated costs for other options.
We analyzed 12 options for a prior notice regulation. Each option
covers all food subject to the interim final rule that is imported to
the United States; the mode of transportation for the food is
specifically addressed in options where minimum prior notice time
constrains importation:
Option 1. Current state of the world, pre-Bioterrorism Act
(baseline).
Option 2. Prior notice time of 1 hour (constrained by shipments
arriving by land modes of transport); electronic submission of
information. This option would require the persons responsible for all
food imported or offered for import into the United States to notify
FDA of their intent to import articles of food through an importer,
customs broker, purchaser, or other agent. This option applies to all
imported foods subject to the interim final rule. Submission of prior
notice information must be electronic. Any change in prior notice
information requires resubmission of corrected or new information.
Option 3. Require all components of option 2, but lengthen the
minimum prior notice time to 2 hours (constrained by shipments arriving
by land transportation modes).
Option 4. Require all components of option 2, but lengthen the
minimum prior notice time to 4 hours (constrained by shipments arriving
by air and land modes of transport); electronic submission of
information.
Option 5. Require all components of option 2, including a 1-hour
minimum prior notice time for vehicles, but lengthen the minimum prior
notice time to 4 hours for articles of food arriving by train and by
air, and 8 hours for articles of food arriving by vessel; electronic
submission of information.
Option 6. Require all components of option 2, but lengthen the
minimum prior notice time to 2 hours for articles of food arriving by
vehicle, 4 hours for articles of food arriving by train and by air, and
8 hours for articles of food arriving by vessel; electronic submission
of information (interim final rule).
Option 7. Require all components of option 4, but allow some prior
notice information to be revised 1 hour before arrival at a U.S. port.
Option 8. Require all components of option 2, but lengthen the
minimum prior notice time to 8 hours (statutory self-executing
provision).
Option 9. Require all components of option 7, but allow some prior
notice information to be revised 1 hour before arrival at a U.S. port.
Option 10. Require all components of option 2, but lengthen the
prior notice time to 12 noon of the calendar day before crossing the
U.S. border.
Option 11. Require all components of option 9, but allow some prior
notice information to be revised 1 hour before arrival at a U.S. port.
Option 12. Require all components of option 9, but allow some prior
notice information to be revised 2 hours before arrival at a U.S. port
(proposed rule).
a. Option 1: Current state of the world, pre-Bioterrorism Act.
Having no prior notice requirements is option 1 in our analysis. The
Bioterrorism Act requires that FDA issue prior notice regulations or
default times take effect, so this option is not legally viable. The
OMB cost-benefit analysis guidelines recommend discussing statutory
requirements that affect the selection of regulatory approaches. These
guidelines also recommend analyzing the opportunity cost of legal
constraints that prevent the selection of the regulatory action that
best satisfies the philosophy and principles of Executive Order 12866.
This option will serve as the baseline against which other options will
be measured for assessing costs and benefits.
b. Option 2: Minimum prior notice timeframe of 1 hour; electronic
submission of information; any change in information requires
resubmission--i. Costs--(1) Learning costs. The party responsible for
submitting prior notice to FDA will incur administrative and
notification costs to comply with this regulation. The responsible
party likely will become aware of the prior notice requirement through
normal business activities: reading the trade press, reading industry
news, FDA outreach, trade outreach, or conversations with other
business operators who also must comply with prior notice. Once the
submitter of the information becomes aware of the regulation, he or she
will need to learn the requirements of the regulation, which will
require finding a copy of the prior notice requirements and reading and
understanding them.
In response to comments received, FDA has re-estimated the costs of
learning about the prior notice regulation. Comments said that the FDA
underestimated the learning costs in the
[[Page 59026]]
proposed rule, because of the large change in business practices.
According to the comments, the importer, depending upon its size, will
have at least two trained filers for CBP and FDA-related entries.
Commenters also stated that it is quite likely that an entire brokerage
staff, including supervisors, will need to understand the FDA prior
notice system.
Some comments suggested that the estimated 1 and 2 hour learning
time for the rule would in fact be an all day training event. Comments
recalled having a daylong seminar to learn about OASIS when it was
introduced. In response to the information these comments submitted, in
this final analysis, FDA assumes that one manager and two subordinates
from each importing business will attend an 8-hour training session on
the prior notice regulation.
FDA used wage rates from the Bureau of Labor Statistics National
Compensation Survey (Ref. 3), doubled to include overhead costs, to
estimate the cost of the time to learn the prior notice requirement.
For an administrative worker, the cost per hour is $25.10: for a
manager, $56.74. FDA assumes that two administrative workers and one
manager will be trained for 8 hours each on the prior notice
requirements. As shown in table 1B of this document, total costs of
this learning activity are about $66 million for the first year.
Given the 10 percent turnover in business reported by the Small
Business Administration, FDA expects 10 percent of the total search
costs to be incurred in each subsequent year after prior notice is in
effect as new firms enter the industry. This cost is also shown in
table 1B of this document.
Table 1B.--Cost To Learn About the Prior Notice Requirements
------------------------------------------------------------------------
Administrative
Manager cost worker cost
(two workers)
------------------------------------------------------------------------
Number of firms....................... 77,427 77,427
Wage rate per hour for manager and $56.74 $25.10
administrator Worker (including
overhead)............................
1-day learning seminar................ * 8 * 8
First year one time learning costs.... $35,145,664 $31,094,684
Total first year learning costs....... ............... $66,240,000
Annual learning costs for new entrants ............... $6,624,000
------------------------------------------------------------------------
* Hours.
(2) Computer acquisition costs. Both the Produce Marketing
Association (PMA) and the National Food Processors Association (NFPA)
submitted comments to FDA before FDA published the proposed rule that
indicated that about 96 percent of the food industry has readily
available Internet access. The American Feed Industry Association,
which represents animal food manufacturers, also agreed with NFPA's
estimate that 96 percent of the food industry has electronic
transmitting capacity.
Since all prior notices must be submitted electronically, we
estimate that there are 3,097 responsible parties without Internet
access (4 percent of the 77,427 importers). These persons will have to
purchase a computer and gain Internet access to transmit the
information via a prior notice screen. This one-time computer cost and
a recurring Internet access cost for these facilities are shown in
table 2 of this document.
Again, given a 10 percent turnover rate for businesses in the
import industry, we expect there to be new businesses in the future
that may need to purchase electronic transmitting capabilities. With
the passage of time, persons will likely purchase this computer
equipment in the ordinary course of business, not solely to comply with
prior notice. We include an estimate of this cost for new entrants to
ensure that we do not underestimate the costs of electronic
transmitting capacity.
A few comments indicated that they did not agree with the estimated
cost for Internet access; they stated that the cost would be higher.
Since FDA will be receiving most prior notices through ABI/ACS, which
is an electronic submission system, and since the FDA PN System
Interface will be used for mail and other non-ABI/ACS transmissions and
is Web-based, FDA does not agree that Internet access rates should be
estimated at a higher rate.
Table 2.--Facilities and Responsible Parties Without Initial Internet
Access
------------------------------------------------------------------------
------------------------------------------------------------------------
Number of facilities.................................... 3,097
Computer equipment cost per facility.................... $2,000
Annual cost of Internet access ($20 per month x 12)..... $240
Search costs for equipment and access ($25.10 x 8 hours) $201
Total First Year One Time Cost of Electronic $7,559,777
Transmitting Capacity..................................
Annual one time cost of electronic transmitting capacity $755,978
for firms entering industry in subsequent years........
------------------------------------------------------------------------
(3) Annual costs to submit prior notice entry lines. FDA used OASIS
information to determine that about 5.2 million entry lines of food
were imported into the United States in fiscal year 2002, including
formal mail and express carrier (e.g., Federal Express) entries. An
``entry line'' is an FDA term used by OASIS, which refers to a line on
an invoice that reflects a certain article specific to manufacturer/
processor or packaging: e.g., 100 cases containing 48, 6-oz cans of
tuna.
Comments on the proposed rule were concerned that the FDA fiscal
year 2001 OASIS entry line estimate (4.7 million lines) was too low.
Some comments said that not all the food categories that will need to
submit prior notice were included in the count; other comments said
that the prior notice requirement would, because of the information
required, increase the number of lines per entry by a significant
amount.
According to FDA OASIS codes, all formal entries for human and
animal food were included in the OASIS line count. This count included
all food contact substances, including the bulk chemicals and polymers
used to
[[Page 59027]]
produce food-packaging material. The OASIS line count also included the
codes for beer and wine, but not distilled spirits (e.g., bourbon,
whiskey, gin, etc.).
The OASIS entry line totals do not include informal entries for
mail or express carrier shipments, or for food brought into the United
States as personal baggage, not for personal use, but intended for sale
or other distribution use. Persons bringing food into the United States
by these means, however, are required to submit prior notice to the
FDA. Therefore, even though food contact substances, including food
packaging, pesticide chemicals, and pesticide chemical residues are no
longer subject to the interim final rule, we do not reduce the estimate
of imported food entry lines in order to capture informal food lines
and other imported food items that are not currently included in the
OASIS line estimates. Rather than adjust the total line estimate
downward to account for the exclusion of food packaging, pesticide
chemicals, and pesticide chemical residues we adjust the estimate of
lines upwards to capture food lines not in OASIS. The upward adjustment
should be regarded as net of food contact substances and food
packaging.
For the prior notice interim final rule, then, FDA has re-estimated
the number of entry lines expected to be filed yearly for prior notice.
The FDA PN System Interface and ABI/ACS are estimated to handle up to
25,000 prior notice submissions on a usual business day, for a
projected yearly total of 6.5 million submissions. (FDA's prior notice
system will operate 24 hours a day, 7 days a week; however, since most
shipments enter the United States during a normal business work week,
Monday through Friday, we estimate the projected prior notice line
total as 25,000 daily submissions x 260 days = 6.5 million lines per
year.) This updated total includes estimates for informal and other
entries not currently captured by OASIS.
According to OASIS data, the average import entry contains 2.6
lines, which means that there are typically more than two different
articles of food per import entry: e.g., 100 cases of canned tuna and
50 cases of canned peaches in the same shipment. A prior notice must be
filed for each of the lines in an entry.
FDA estimates that it will take, on average, 1 hour to submit an
import entry of 2.6 lines. This time is an average; some entries will
take longer than 1 hour to complete and other entries will take less
than 1 hour to complete.
This 1-hour estimate includes 45 minutes of an administrative
worker's time to gather information to initially complete the prior
notice, and then 15 minutes of a manager's time to verify that the
information is correct. Assuming that there is an average of 2.6 lines
per entry, and each line requires a prior notice, then each line
actually takes about 23 minutes to complete.
Comments on the prior notice proposed rule agreed with the FDA
estimation for time to fill out the notice. Comments also agreed that
once prior notice submitters were familiar with the information
required, an hour was a reasonable time estimate. Some comments,
however, suggested that the time to make amendments and updates to the
prior notice had not been included or was not sufficient in the
proposed rule. FDA believes the 1 hour estimate is appropriate for the
following reasons: (1) The interim final rule does not contain update
or amendment provisions as the reduced time for submitting a prior
notice negated the need for them; (2) CBP Form 3461, (the entry
document upon which information is provided to CBP) carries an
estimated burden of 15.5 minutes and FDA Importer Entry Notice (as
required by section 801 of the FD&C Act) carries an estimated burden of
8.5 minutes (Paperwork Reduction Act estimates); and (3) many comments
agree with the hour estimate for submitting prior notice (23 minutes
per line).
Comments were also concerned that FDA had not included costs to
have a licensed customs broker file prior notice submissions in the
costs estimated for the proposed rule. FDA specifically made no
assumptions in its analysis of the proposed rule about who would file
the prior notice. Our estimate covered anyone who was authorized to
file a prior notice based on the anticipated number of entry lines. The
analysis implicitly assumed that if an importer, owner, or consignee
hired a customs broker to submit their prior notices, the broker would
do so at the marginal cost. In the competitive market for broker
services, this assumption is reasonable.
However, FDA prior notice may now be submitted through ABI/ACS for
most importations, so the burden of prior notice submission will most
likely be on the customs brokers that normally file with CBP. Some
comments said that the current customs broker cost to file an entry
with CBP is $110, with the additional filing of prior notice increasing
these costs by up to 70 percent. Other comments also indicated that the
additional costs to file prior notice would be between $50 or $100 or
more for an entry.
Based on comments and FDA's own research on the broker costs, FDA
agrees that the average costs to submit prior notice will be higher
than the $33 per entry estimated in the proposed rule. For this interim
final rule, FDA used information provided by commenters to estimate $75
as the cost to file prior notice. FDA believes that using a midrange
estimate is appropriate for this cost since filing prior notice through
ABI/ACS should efficiently combine transactions costs for brokers
submitting information to both CBP and FDA.
Using the OASIS data indicating that the average imported entry
contains 2.6 lines, we can then divide the expected yearly 6.5 million
total lines by 2.6, which results in 2.5 million expected import
entries. Table 3 of this document shows that the annual cost of prior
notice submissions based on 2.5 million entries will be about $187.5
million.
Table 3.--Cost To Fill Out Prior Notice Screens by Import Entry
[Must Be Electronic]
------------------------------------------------------------------------
------------------------------------------------------------------------
Broker cost per entry to submit prior notice........... $75
OASIS entry total based on 6.5 million lines........... 2,500,000
Total Annual Costs (of all prior notice screens based $187,500,000
on 2.6 lines per entry, including updates and
amendments to the information)........................
------------------------------------------------------------------------
(4) Information coordination costs. As previously stated, FDA
received numerous comments on the time it takes to file a prior notice
for each line, with some comments agreeing that an entry will take an
hour to complete once firms learn how to submit the information.
However, comments were concerned that the preparation cost to
coordinate the information needed for each prior notice had not been
calculated.
[[Page 59028]]
In particular, comments said that firms will need to teach their
suppliers, manufacturers/processors, customers, drivers, warehouses,
growers, carriers, and shippers about the prior notice requirements
regardless of whether each of the parties has filing responsibilities.
FDA agrees. This new collection will necessitate some additional
coordination of information among the parties involved in importing the
article of food into the United States.
FDA assumes it takes about 2 business days (16 hours) for an
administrative employee of the prior notice-submitting firm to
coordinate with others to set up the new business practices required to
receive the information needed for prior notice. We assume this set-up
time will be sufficient to coordinate information for existing
importing accounts. Table 4 of this document reports the costs of this
information gathering and coordinating activity.
Because we expect some importing firms to enter and leave the
industry every year, so do we expect importing firms to experience a
turnover rate for their import accounts. FDA assumes that the turnover
rate on these types of accounts is similar to the entry and exit rate
of firms. We therefore assume that 10 percent of the firms' accounts
each year are new accounts for which prior notice coordination of
information is needed. This cost is also presented in table 4 of this
document.
Table 4.--Information Gathering and Coordination for Prior Notice
------------------------------------------------------------------------
------------------------------------------------------------------------
Number of firms submitting notices...................... 77,427
Administrative worker wage rate (doubled to include $25.10
overhead)..............................................
Time to coordinate existing accounts.................... 16 hours
First year cost of coordination of information on $31,094,683
current accounts.......................................
Annual cost of coordination of information on new $3,109,468
accounts...............................................
------------------------------------------------------------------------
ii. FDA costs. Information Technology. We assume that FDA's
information technology (IT) costs for this option and each option
hereafter are the costs of interfacing with ABI/ACS to receive prior
notice through OASIS for most FDA-regulated food subject to this
interim final rule. FDA is developing an FDA PN System Interface to
receive prior notice information for import entries that cannot be
accommodated through ABI/ACS, mainly mail and baggage entries, and
prior notices for food refused under section 801(m) of the FD&C Act.
FDA has allocated $12.5 million for the development of the FDA
prior notice system for fiscal year 2003. This total is broken down
into $7,400,000 for infrastructure design, procurement, setup,
operations, and maintenance of computer system hardware and system and
database software and licensing, plus $5,100,000 for contractor
services for the design, development, testing, and implementation of
the FDA PN System Interface and the extensive enhancements required by
OASIS to support prior notice. These costs are summarized in table 5 of
this document. Also included in table 5 are the costs CBP has incurred
to accommodate prior notice. CBP costs include modifying ABI/ACS,
training, and outreach.
In the next few years, CBP plans to have its new system, ACE
(Automated Commercial Environment), operational. The ACE system will
replace the current ABI/ACS as well as combine other CBP entry
functions and transactions. Prior Notice submission will be compatible
with ACE. It is quite likely that importers will benefit from the
enhanced functions of the new ACE system.
Table 5.--FDA Prior Notice System Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
Infrastructure design and implementation................ $7,400,000
Contractor services..................................... $5,100,000
FDA system interface costs.............................. $12,500,000
CBP ABI/ACS system modification costs................... $500,000
Total prior notice system costs......................... $13,000,000
------------------------------------------------------------------------
Human Resources. The implementation of prior notice does not
specifically call for the hiring of additional FDA border or
inspectional staff. However, even before the passage of the
Bioterrorism Act, FDA hired 300 additional consumer safety officers to
help with the inspection of articles of food. And with the
implementation of the prior notice interim final rule, it is quite
likely that FDA will need to concentrate even more of its human
resources on enforcement activities. Currently, FDA is working on a
memorandum of understanding with CBP that would allow FDA to commission
CBP's help as needed for inspections and enforcement activities related
to the prior notice rule.
Destruction of Foods. FDA will be responsible for the destruction
of articles of food that come into the United States via international
mail and whose prior notices are considered inadequate or refused. FDA
does not have an estimate of these destruction costs. We expect these
destruction costs to be minimal, however, based on the fact that these
will be personal food shipments and that there were relatively few
formal mail entries (38,000) for articles of food in the OASIS data for
fiscal year 2002.
iii. Current operating practices affected--(1) Food importers
currently using BRASS. In response to comments, FDA and CBP have agreed
to allow prior notice information to be filed through ABI/ACS for most
articles of food. By allowing prior notice to be submitted through ABI/
ACS, FDA has eliminated the duplicative information collection that
would have resulted from the proposed stand-alone FDA Web-based system.
While combining agency efforts has eliminated duplicative submission of
information for many food importers, the combined system will increase
submission requirements for those food importers who use BRASS.
BRASS is a CBP program that allows expedited arrival processing for
high-volume, repetitive shipments that have been judged by CBP to be
low risk. BRASS processing is not compatible with the electronic
submission of prior notice information because entry information for
BRASS shipments is not filed until entry summary, long after the food
has crossed the border. Therefore, those food importers who currently
use BRASS and its expedited arrival process
[[Page 59029]]
will no longer be able to do so once prior notice submission is
required.
Currently, importers who qualify to use BRASS show paperwork at the
border. These importers then only have to submit an entry summary after
arrival (up to 10 business days later). In contrast, non-BRASS
importers must submit an entry and a later entry summary. Since prior
notice is required before arrival, importers of FDA-regulated products
will no longer be able to submit information to CBP using BRASS; they
must submit both the entry information (which includes prior notice
requirements) and then a later entry summary to CBP.
Data from CBP show that about 630,000 entry lines were submitted
through BRASS for FDA-regulated products, including foods, in fiscal
year 2002. We use this information to estimate the increased submission
costs for these importers once they are no longer able to use BRASS to
expedite entry of their products. Increased submission costs come in
the form of having to make two submissions through CBP instead of the
one summary entry after arrival in the United States. We calculated the
cost of the one additional transmission of information, now required
due to the prior notice information that is needed before arrival, in
table 3 of this document. By using these same costs per import entry
($75), we can account for the extra costs for BRASS users. Table 6
shows that the extra submission of information by importers no longer
able to use BRASS will be about $18 million per year.
Being able to use BRASS not only allows the condensing of the
submission of required import information, but also allows the
importer's carrier or transporter to spend less time crossing the
border. BRASS users must stop at the border only long enough for a CBP
official to ``wand'' the barcode information pertaining to their
shipments and assign a CBP entry number to the shipment. Once food
importers are no longer able to use BRASS, however, they must not only
submit more information on the shipment than was previously required at
arrival, but they also will no longer be able to cross the border as
quickly. Because former BRASS entries will no longer be able to get
through the border checkpoints as easily as they used to, we include
here the cost of an extra half-hour of truck time per BRASS entry.
Using one comment's estimate of the cost of truck time, $250 per
hour, we can calculate the yearly additional cost of wait time at the
border for food importers who were former BRASS users. Table 6 of this
document shows the cost of the additional truck time for BRASS users to
be about $30 million annually.
Table 6.--Additional Costs for BRASS Users
------------------------------------------------------------------------
------------------------------------------------------------------------
Additional Submission Costs:
Total cost per import entry......................... $75
FY 2002 BRASS line total for FDA-regulated products. 630,000
BRASS yearly entry total (2.6 lines per entry)...... 242,308
Additional annual costs of submissions for BRASS $18,173,100
users..............................................
Additional border wait time:
Cost per half hour.................................. $125
BRASS yearly entry total (2.6 lines per entry)...... 242,308
Additional annual border wait costs for former BRASS $30,288,500
users..............................................
Total annual additional food importing costs for $48,462,000
BRASS users........................................
------------------------------------------------------------------------
(2) Loss of value for highly perishable products. A 1-hour minimum
prior notice requirement would be less likely to change current food
importing practices than would a longer minimum time requirement for
prior notice submission. Pre-proposal comments received from Canadian
and Mexican perishable seafood processors and produce growers indicated
they would prefer the minimum prior notice time to be set at 4 hours or
less. The seafood processors and produce growers asked for the shorter
minimum prior notice time because the source of these food products
often is close to the U.S. border, and the products are perishable.
For example, Canadian fruit and vegetable producers said that such
products as ``leafy vegetables, green onions, cabbage, cauliflower, new
potatoes, sweet cherries, and berries are harvested within hours of
arrival at the U.S. border and cannot withstand delays, especially
during the extreme heat of summer and early fall when the products are
in season.'' As another example, a produce company from Mexico
commented that growers typically harvest produce in the morning, pack
and cool the fruit in the afternoon, and then start the drive to the
U.S. border during evening hours. Some, but not all, of the border
ports are open in the evenings during the height of the Mexican produce
season. If notice to FDA is required by 12 noon the calendar day before
arrival at the border, as FDA proposed, it is unlikely that these
produce products could be harvested in the morning in Mexico and then
enter the United States by the same evening, because not all the
information would be prepared in time to meet the submission deadline
in the proposed rule, which was 12 noon the day before arrival in the
United States.
Canadian seafood industry comments said that 90 percent of all
fresh seafood sales are same day orders that are processed, sold, and
shipped in the same day. They also commented that if buyers were
required to submit seafood orders early (by 12 noon on the calendar day
before arrival) because of prior notice requirements, they would tend
to order short, rather than risk being left with a decomposing
inventory. Comments also said that many perishable seafood contracts
with shippers call for a variety of species to be delivered depending
on what could be harvested that day; thus, species and the specific
amount of fish in an import entry will be uncertain for longer prior
notice timeframes.
From these comments, it is clear that at least in some industries,
when the order for the shipment is received, when the prior notice is
submitted, when the shipment is loaded, and the loaded shipment's
location relative to a U.S. border all play roles in determining how
the requirement for prior notice will affect current business operating
practices.
FDA expects that there will be some imported shipments by vehicle
for which the order was received just before the shipping time, some
shipments for which the composition of the product has changed since
the time when the prior notice was submitted, and some shipments for
which other changes to the information on the prior notice must be
made. Importers whose shipments fall into this ``changed'' category
must
[[Page 59030]]
resubmit the prior notice or risk that their products will be refused
admission into the United States and held if the notice is deemed
inadequate.
FDA does not have information on the number of shipments that,
under this option, would need to submit or resubmit prior notice
information due to a late order or a change in the information provided
on the original notice. We know that changes will occur for some
percentage of all prior notices; comments did not indicate the
percentage of notices that would have to be resubmitted.
Depending on the U.S. entry point, however, comments FDA received
before publishing the proposal indicated that between 40 and 100
percent of shipments from Canada and Mexico are loaded less than 4
hours before arrival. Therefore FDA believes that it is this subset of
importers, importing perishable products not far from the U.S. border,
that will be most concerned with the prior notice submission timeframe.
Based on this information, FDA bases its prior notice resubmission
percentage rates and prior notice arrival time on the 4 hours required
under option 4.
Option 4 is to have prior notice be required 4 hours before
arrival, with the resubmission rate at 20 percent; one-half the
comments' lower bound estimate of 40 percent. By using option 4 as the
base option, we can then estimate resubmission rates for prior notice
arrival times that are less than 4 hours. We assume, then, that for
each hour reduction in required prior notice arrival time, the
resubmission rate for importers of perishable produce and seafood
(based on their location to the border and order placement) is cut in
half. Thus, for a 3 hour prior notice timeframe, we assume the
resubmission rate for notices will be 10 percent, for a 2 hour prior
notice timeframe the resubmission rate for notices will be 5 percent,
and for a 1 hour prior notice timeframe (this option) the resubmission
rate for notices is 2.5 percent.
(3) Loss of value for perishables. The following paragraphs and
tables outline how FDA calculated a loss in product value to account
for the time that perishable produce and seafood from Canada and Mexico
might have to wait to cross the border due to prior notice
resubmission. This wait occurs if prior notice needs to be submitted or
canceled and resubmitted due to shipment changes when the shipment is
closer to the border than the 1 hour required; the transporter of the
shipment must wait for the minimum prior notice time to elapse before
crossing the border or risk being denied entry.
Comments from Canadian and Mexican perishable seafood and produce
producers indicated that the mode of transport that causes the most
concern for delays are shipments arriving in the United States by
truck. Some comments, however, indicated that some perishable products
might arrive via air transportation, and that air flights from Latin
America and even potentially some countries in Europe could take less
than 8 hours and in some cases less than 4 hours.
FDA has examined flight times to the countries suggested by
comments. FDA does not believe that articles of food arriving in the
United States on flights from South America or from Europe will be
delayed by the prior notice requirement. However, FDA does believe that
perishable products being flown in from Central America might
experience some delay, and therefore lost product value, as a result of
prior notice. We will begin to include the products from these
countries in option 4, minimum prior notice time of 4 hours.
Information on perishable produce and seafood from Canada and
Mexico used in this analysis represents yearly shipments of each
product regardless of mode of transport. We assume most of these
shipments arrive in the United States by truck or other ground
transportation, given the proximity of Mexican and Canadian processors
to the border, but it is possible that some shipments by air and sea
are included in this count. These yearly all-inclusive totals should
therefore be sufficient to account for any delay in time that importers
of food shipments from Canada and Mexico may experience.
Table 7 of this document shows the volume of fresh, perishable
produce imported into the United States from Mexico for the calendar
year 2001 (Ref. 4). Produce was included in the count if it was
considered `highly or very highly perishable' (Ref. 5) and if the
produce was not regulated under section 8e of the Agricultural
Marketing Agreement Act of 1937 (AMAA). Products currently regulated by
the AMAA (including, tomatoes, avocadoes, oranges, dates, hazelnuts,
grapefruit, table grapes, kiwi fruit, limes, most olives, onions, Irish
potatoes, plums, prunes, raisins, and walnuts), are required to notify
USDA at least 1 day before arrival to make arrangements for inspection
and certification of the product they are importing. These products
therefore are not included in the count because they already have
business practices in place that would accommodate the prior notice
requirements provided in this option.
Several comments wanted products under the AMAA and products that
are somewhat less perishable to be included in the perishability loss
of value calculation. FDA has decided not to include these products in
the lost value calculation; products under the AMAA already have
operating practices in place to ensure they provide notice before
arrival and those products that are less than highly perishable, such
as potatoes, are not going to lose value because of the prior notice
times presented in these options. FDA will expand its analysis to
include the cost of additional truck time for longer submission times
for all products being imported into the United States. FDA agrees with
the comments that stated that the cost of truck time from a delay at
the border is a real cost regardless of a product's perishability.
Multiplying the volume of Mexican produce that was imported into
the United States in 2001 by the current U.S. border prices per pound
(Ref. 6) for these products gives an estimate of wholesale revenue.
Then we convert the wholesale revenue to retail revenue using the
retail price mark-up on produce in the United States. We will increase
the wholesale revenue by 100 percent in these estimates to represent a
reasonable retail price mark-up rate across produce commodities in the
United States (Ref. 7). Some comments did not agree with FDA's
calculation of the spread between wholesale and retail prices for
perishable products. We reexamine our choice of the 100 percent mark-up
rate in a sensitivity analysis presented later in the costs section.
BILLING CODE 4160-01-P
[[Page 59031]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.075
We repeat the exercise outlined above in table 7 of this document
for Canada, as shown in table 8 of this document. For these
calculations we assume that Canadian produce growers use business
practices that are similar to those used by Mexican growers; FDA did
not receive any comments to the contrary. As with the Mexican produce,
only Canadian produce that is highly or very highly perishable and did
not fall under the purview of the AMAA is included in table 8 of this
document.
[[Page 59032]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.076
Assuming that perishable produce has an average life span of 7
days, we estimate the value of the time lost (1 hour) for 2.5 percent
of the imports waiting to cross the border as a less than 1 percent
loss in the product's value (1 hour out of 168 hours). Applying this
0.6 percent loss in value to 2.5 percent of the total retail revenue of
imported Mexican fresh produce results in approximately a $519,000 loss
in produce value. We calculate that same 0.6 percent loss in product
value for 2.5 percent of the Canadian imported perishable produce. This
loss in product value due to the 1-hour wait time totals approximately
$60,000.
We used information from the annual imported seafood statistics
published by the National Marine Fisheries Service (Ref. 8) to estimate
the weight and wholesale value in dollars of all perishable seafood
products imported from Mexico and Canada. As we did for perishable
produce, we mark-up the wholesale price of the perishable seafood by
100 percent (Ref. 9) to represent the retail value of the products.
Table 9 of this document shows the value of perishable seafood imports
from Mexico; table 10 of this document shows the value of perishable
seafood imports from Canada.
BILLING CODE 4160-01-P
[[Page 59033]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.077
[[Page 59034]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.078
[[Page 59035]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.079
[[Page 59036]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.080
BILLING CODE 4160-01-C
We used the same logic for seafood as we did for produce to account
for the possibility of having to resubmit prior notice: A change in the
type of seafood in the shipment made after the original notice was
submitted, less than 1 hour before scheduled arrival, would lead to a
reduction in value. We use the reduction in the value of perishable
imported seafood to account for the cost of a wait at the border while
prior notice is resubmitted. Then, assuming that perishable seafood
will keep for 2 days in a consumer's refrigerator (Ref. 10), we find
that a 1-hour wait caused by the prior notice requirement for 2.5
percent of the products would result in a 2.1 percent loss in that
seafood's value (1 hour out of 48 hours). The lost time would result in
a $59,000 loss in value of Mexican perishable seafood imports and a
$978,000 loss in value of Canadian perishable seafood imports.
Table 11 of this document shows the loss in value caused by the
resubmitted prior notice information for the 2.5 percent of imported
Mexican and Canadian fresh seafood and produce affected.
[GRAPHIC] [TIFF OMITTED] TR10OC03.081
Table 12 of this document presents a summary of the costs
associated with option 2. Also presented in table 12 of this document
are the present values of the costs associated with this option,
calculated using the OMB-recommended discount rates of 3 and 7 percent.
The first 6 rows of the summary table are the same for options 2
through 9. The options differ only in the time set for prior notice and
revisions; the differences in cost across options arise from
differences in the lost value of produce and seafood, and in some
options, the cost of truck time.
Table 12.--Summary of Costs for Option 2 (1 Hour Prior Notice Submission
Time)
------------------------------------------------------------------------
Dollars
(thousands)
------------------------------------------------------------------------
Learning costs.......................................... $66,240
[[Page 59037]]
Coordination costs...................................... $31,095
Computer acquisition costs.............................. $7,600
FDA prior notice system costs........................... $13,000
Annual costs to fill out prior notice screens........... $187,500
Additional costs for BRASS users........................ $48,462
Lost value for Mexican produce.......................... $519
Lost value for Canadian produce......................... $60
Lost value for Mexican seafood.......................... $59
Lost value for Canadian seafood......................... $978
Total first year costs for Option 2..................... $355,513
Annual costs after first year........................... $249,372
Present value of costs at 7% for 20 years............... $2,741,043
Present value of costs at 3% for 20 years............... $3,813,068
------------------------------------------------------------------------
c. Option 3: Minimum prior notice time of 2 hours before arrival;
electronic submission of information; any change in information
requires resubmission. Option 3 requires that prior notice be submitted
2 hours before arrival. If the prior notice time for submission is 2
hours instead of 1 hour, the probability of having to adjust and
resubmit prior notice information will be greater. Now, instead of 2.5
percent of the importers of perishable products from Canada and Mexico
having to cancel and resubmit their notices, we will assume that the 2-
hour submission timetable means that 5 percent will have to resubmit
their notices. FDA expects most orders to be placed well in advance of
the 2-hour timeframe. Carriers of these products may not be able to
cross the border for 2 hours instead of 1 hour, which affects 1.2
percent of the produce life span (2 hours out of 168 hours) and 4.2
percent of the seafood life span (2 hours out of 48 hours).
Table 13 of this document shows the loss in value caused by the
resubmitted prior notice information for the 5 percent of imported
Mexican and Canadian fresh seafood and produce affected.
Table 13.--Loss in Value Caused by Resubmitted Prior Notice Under Option
3
------------------------------------------------------------------------
------------------------------------------------------------------------
Perishable Produce
2001 Imported Mexican produce total retail value..... $3,458,525,000
1.2% Reduction in value for 5% of Mexican produce.... $2,075,115
2001 Imported Canadian produce total retail value.... $401,826,000
1.2% Reduction in value for 5% of Canadian produce... $241,096
Total Lost Value for Produce......................... $2,316,000
Perishable Seafood
2001 Imported Mexican seafood total retail value..... $112,277,406
4.2% Reduction in value for 5% of Mexican seafood.... $235,783
2001 Imported Canadian seafood total retail value.... $1,863,217,894
4.2% Reduction in value for 5% of Canadian seafood... $3,912,758
Total Lost Value for Seafood......................... $4,149,000
------------------------------------------------------------------------
We do not include the costs of truck time with this option, as the
prior notice timeframe is relatively short and encompassed within the
time many trucks currently spend at the borders.
Table 14 of this document presents a summary of the costs
associated with option 3. Also presented in table 14 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
Table 14.--Summary of Costs for Option 3 (2 Hour Prior Notice Submission
Time)
------------------------------------------------------------------------
Dollars
(thousands)
------------------------------------------------------------------------
Learning costs.......................................... $66,240
Coordination costs...................................... $31,095
Computer acquisition costs.............................. $7,600
FDA prior notice system costs........................... $13,000
Annual costs to fill out prior notice screens........... $187,500
Additional costs for BRASS users........................ $48,462
Lost value for Mexican produce.......................... $2,075
Lost value for Canadian produce......................... $241
Lost value for Mexican seafood.......................... $236
Lost value for Canadian seafood......................... $3,913
Total first year costs for Option 3..................... $360,362
Annual costs after first year........................... $254,221
Present value of costs at 7% for 20 years............... $2,792,413
[[Page 59038]]
Present value of costs at 3% for 20 years............... $3,885,209
------------------------------------------------------------------------
d. Option 4: Minimum prior notice timeframe of 4 hours before
arrival; electronic submission of information; any change in
information requires resubmission. Option 4 requires that prior notice
be submitted 4 hours before arrival instead of 2 hours before arrival.
How much the business practices of importers, produce growers, and
seafood processors will be affected by prior notice requirements again
will depend on how early the orders are received compared with how
early prior notice must be submitted. If the order for the product is
placed more than 4 hours before the shipment is scheduled to arrive at
the border, then there should be no delay in the importation of the
product.
What is more likely to cause a wait before crossing the border is
if the information on the prior notice changes after the prior notice
has been submitted (i.e., quantity shipped is greater than the quantity
specified on the prior notice); this situation will be exacerbated if
the exporting facility is located within 4 hours of the U.S. border.
For example, if the prior notice is submitted for swordfish before the
transport is loaded, and the fish to be loaded turns out to be shark
instead of swordfish, the prior notice information submitted will not
match the actual shipment. This is one way that information on a prior
notice submission might change after the prior notice has already been
submitted to FDA, thus requiring a cancellation of the prior notice and
a resubmission of the corrected information.
Having to resubmit a prior notice to FDA may not cause any delay of
the shipment if the original submission was placed early enough.
However, it is likely that the necessary corrected prior notice
information will be resubmitted not long before the article of food
starts heading for the border. Therefore it is likely that some
shipments may have to wait several hours before entering the United
States.
If the prior notice time for submission is 4 hours before arrival
instead of 2 hours, the probability of having to adjust and resubmit
prior notice information will be greater. Now, instead of 5 percent of
the importers of perishable products from Canada and Mexico having to
resubmit their notices, we will assume that the 4-hour submission
timetable means that 20 percent will have to resubmit their notices.
Since pre-proposal comments asserted that 40 to 100 percent of trucks
are loaded less than 4 hours before driving to the border, we will
assume one-half of their lower-bound estimate as the percentage of
articles of food that will have to have their prior notices
resubmitted.
For this option, and other options where the minimum prior notice
time for food arriving by airplane is 4 hours or longer, we include the
lost value for highly and very highly perishable produce and seafood
imported from Central American countries (including some Caribbean
countries and Colombia), not subject to the AMAA. Perishable produce
from Belize, Costa Rica, the Dominican Republic, Guatemala, Haiti,
Jamaica, Honduras, Nicaragua, Panama, and Colombia can all be flown to
Miami, FL in 2 to 4 hours, depending on the starting location.
Perishable fish products from the Bahamas, Barbados, Costa Rica, the
Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Jamaica,
Nicaragua, Panama, and Colombia also can be flown to Miami, FL in 2 to
4 hours. Table 15 of this document shows the retail value of perishable
produce imported from Central America to the United States for 2001.
Table 16 of this document shows the retail value of perishable seafood
imported from Central America for 2001.
BILLING CODE 4160-01-P
[[Page 59039]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.082
[[Page 59040]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.083
BILLING CODE 4160-01-C
Importers of perishable products from Canada, Mexico, and Central
America may not be able to cross the border for 4 hours, which is 2.4
percent of the produce life span (4 hours out of 168 hours) and 8.3
percent of the seafood life span (4 hours out of 48 hours).
Table 17 of this document shows the loss in value caused by the
cancelled and resubmitted prior notice information for the 20 percent
of imported Mexican, Canadian, and Central American perishable seafood
and produce affected.
[[Page 59041]]
Table 17.--Loss in Value Caused by Resubmitted Prior Notice Under Option
4
------------------------------------------------------------------------
------------------------------------------------------------------------
Perishable Produce
2001 Imported Mexican produce total retail value..... $3,458,525,000
2.4% Reduction in value for 20% of Mexican produce... $16,600,920
2001 Imported Canadian produce total retail value.... $401,826,000
2.4% Reduction in value for 20% of Canadian produce.. $1,928,765
2001 Imported Central American produce total retail $217,420,000
value...............................................
2.4% Reduction in value for 20% of Central American $1,043,616
produce.............................................
Total Lost Value for Produce......................... $19,574,000
Perishable Seafood
2001 Imported Mexican seafood total retail value..... $112,277,406
8.3% Reduction in value for 20% of Mexican seafood... $1,863,805
2001 Imported Canadian seafood total retail value.... $1,863,217,894
8.3% Reduction in value for 20% of Canadian seafood.. $30,929,417
2001 Imported Central American produce total retail $251,796,496
value...............................................
8.3% Reduction in value for 20% of Central American $4,179,822
seafood.............................................
Total Lost Value for Seafood......................... $36,973,000
------------------------------------------------------------------------
For this 4-hour prior notice submission timeframe and for all
subsequent options with longer timeframes for submission, we also begin
to include some holding time costs paid to carriers of products to be
imported. We add in this cost in response to the comments that
indicated that at least 40 percent of food products being imported from
Canada and Mexico are coming from locations located 4 hours or less
from a U.S. border. For products located less than 4 hours from the
U.S. border, it is quite possible that the carrier will have to be paid
for additional waiting time over what had been established under the
current business practices. Comments indicated that additional truck
time was a real possibility for all food products being imported and
not just perishable products. We therefore include a percentage of all
products requiring prior notice in the cost estimate in table 18 of
this document.
We do not have information on the number of import entries that may
use additional truck time because of prior notice submission times.
Therefore, we will assume that 20 percent of the 2.3 million lines that
entered the United States by ground transportation in fiscal year 2002
(based on OASIS data) will pay for an additional 1 hour of truck time
per entry. We use 20 percent as the percentage of trucks delayed to be
consistent with our resubmission rate of 20 percent when the prior
notice submission timeframe is 4 hours before arrival.
Table 18.--Cost of Additional Carrier Tme for Option 4
------------------------------------------------------------------------
------------------------------------------------------------------------
2002 OASIS import entry lines by ground 2,300,000
transportation (truck or train).....................
Average number of lines per entry.................... 2.6
Total number of ground entries....................... 884,615
20% of ground entries................................ 176,923
Cost for 1 hour of carrier time ($250 per hour)...... $250
Total cost of truck time............................. $44,231,000
------------------------------------------------------------------------
Table 19 of this document presents a summary of the costs
associated with option 4. Also presented in table 19 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
Table 19.--Summary of Costs for Option 4 (4 hour minimum prior notice
submission time)
------------------------------------------------------------------------
Dollars
(thousands)
------------------------------------------------------------------------
Learning costs....................................... $66,240
Coordination costs................................... $31,095
Computer acquisition costs........................... $7,600
FDA prior notice system cost......................... $13,000
Annual costs to fill out prior notice screens........ $187,500
Additional Costs for BRASS users..................... $48,462
Lost value for Mexican produce....................... $16,601
Lost value for Canadian produce...................... $1,929
Lost value for Central American produce.............. $1,044
Lost value for Mexican seafood....................... $1,864
Lost value for Canadian seafood...................... $30,929
Lost value for Central American seafood.............. $4,180
Cost for truck time.................................. $44,231
Total first year costs for Option 4.................. $454,675
Annual costs after first year........................ $348,534
Present value of costs at 7% for 20 years............ $3,791,567
Present value of costs at 3% for 20 years............ $5,288,348
------------------------------------------------------------------------
[[Page 59042]]
e. Option 5: Minimum prior notice time frame of 1 hour before
arrival for vehicles, 4 hours before arrival for rail and air, and 8
hours before arrival for vessels; electronic submission of information;
any change in information requires resubmission. Option 5 requires that
prior notice be submitted 1 hour before arrival for articles of food
being imported by vehicle and 4 hours before arrival for articles of
food being imported by rail or air modes of transportation. This option
is a combination of the minimum prior notice times used in options 2,
4, and 8. By varying minimum prior notice times by conveyance type,
option 5 provides flexibility for the importers where it is most
needed.
Importers whose articles of food are transported by vehicle from
Canada and Mexico are most constrained by facility proximity to the
United States, so a 1-hour minimum prior notice time for these
shipments is the least constraining possible while still allowing FDA
the time needed to review the import information. Comments on shipments
of food arriving in the United States by vehicle indicated that
(specifically Mexican) food facilities are often close to the U.S.
border, and thus requested that FDA require a minimum prior notice time
of 2 hours rather than the proposed 12 noon the calendar day prior to
arrival. A minimum prior notice time for vehicle traffic of 1 hour will
be even less constraining on importers than the 2 hours requested by
the majority of comments.
Importers whose shipments of food are flown in from the Caribbean,
Central America, and Colombia, or importers whose food shipments are
brought into the United States by train will be less constrained by
minimum prior notice time than food shipments arriving by vehicle, but
more constrained than food shipments arriving in the United States by
vessel. Therefore, for this option, importers bringing food into the
United States by airplane or by train are required to give prior notice
a minimum 4 hours before arrival. This timeframe is sufficient for even
shorter flights from Caribbean countries and Central American countries
to the United States. For example, though the actual flying time of a
direct flight from the Bahamas to Miami is only 2 hours, the airplane
must be loaded, taxied to the runway, cleared for take-off, and on
arrival landed, taxied from the runway, and unloaded. A 4-hour minimum
prior notice time will therefore seldom be constraining. A 4-hour
minimum prior notice time for flights could be constraining for rush
orders of food from Canada and Mexico. However, OASIS fiscal year 2002
data shows that only about 10,000 food entry lines were flown in from
Canada and only about 20,000 lines flown in from Mexico. This is a very
small portion, less than 1 percent, of total shipments from Canada and
Mexico.
Option 5 requires that prior notice be submitted 8 hours before
arrival for articles of food being imported by vessel. We do not
specifically address food importation by vessel in this option because
this mode of transport will not be constrained by an 8 hour minimum
prior notice timeframe. The costs of this option for vessels will be
the same as in the previous option.
(i) One-hour minimum prior notice time for food arriving by
vehicle. Importers of perishable products from Canada and Mexico, whose
articles of food arrive in the United States by vehicle, will have to
submit prior notice 1 hour before arrival. This short, minimum
submission time should eliminate the probability of having to resubmit
prior notice for all but 2.5 percent of those perishable products
imported from Canada and Mexico.
OASIS data indicates that approximately 44 percent of all imported
food shipments used land transportation to arrive in the United States
for fiscal year 2002. These shipments must come from Canada and Mexico
(or in some cases transshipped), as these are the countries that have
land borders with the United States. OASIS data shows that only about 2
percent of imported food shipments arrived in the United States by rail
in 2002, and less than 1 percent of shipments arrived from Canada and
Mexico by air. Thus, at least 97 percent of all imported food shipments
arriving from Canada and Mexico used vehicles as the mode of transport.
Using this 97 percent estimate, we calculate the proportion of the
total retail value of highly perishable produce and seafood from Canada
and Mexico that arrives in the United States by vehicle. We then use
this new retail value, 97 percent of the total value, to calculate the
lost product value (1 hour out of 168 hours for produce, 1 hour out of
48 hours for seafood) for the 2.5 percent of highly perishable produce
and seafood from Canada and Mexico for which importers would have to
resubmit the prior notice when the minimum submission time is 1 hour.
Table 20 of this document shows the loss in value caused by the
cancelled and resubmitted prior notice information for the 2.5 percent
of imported Mexican and Canadian perishable seafood and produce
affected.
We also do not include the cost of truck time with this option,
because the minimum prior notice time for articles of food arriving by
vehicle is only 1 hour. Given current border wait times and
manufacturing/processing facility distance from the U.S. border, it is
unlikely that articles of food will have to wait to enter the United
States because of prior notice requirements.
Table 20.--Loss in Value Caused by Resubmitted Prior Notice Under Option
5 for Shipments Arriving by Vehicle (1-hour minimum notice requirement)
------------------------------------------------------------------------
Dollars
------------------------------------------------------------------------
Perishable Produce:
2001 Imported Mexican produce total retail value..... $3,458,525,000
97% of Total retail value for Mexican produce........ $3,354,769,000
0.6% Reduction in value for 2.5% of Mexican produce.. $503,215
2001 Imported Canadian produce total retail value.... $401,826,000
97% of Total retail value for Canadian produce....... $389,771,000
0.6% Reduction in value for 2.5% of Canadian produce. $58,466
Total lost value for produce......................... $562,000
Perishable Seafood
2001 Imported Mexican seafood total retail value..... $112,277,000
97% of Total retail value for Mexican seafood........ $108,909,000
2.1% Reduction in value for 2.5% of Mexican seafood.. $57,177
2001 Imported Canadian seafood total retail value.... $1,863,218,000
[[Page 59043]]
97% of Total retail value for Canadian seafood....... $1,807,321,000
2.1% Reduction in value for 2.5% of Canadian seafood. $948,844
Total lost value for seafood......................... $1,006,000
------------------------------------------------------------------------
(ii) Four-hour minimum prior notice time for food arriving by rail
and air. The 4-hour minimum submission time for prior notice applies to
articles of food imported by rail and air modes of transportation. A 4-
hour minimum prior notice time for these modes of transportation could
be constraining for products arriving from the countries bordering the
United States.
Since we are assuming that 97 percent of food imported from Canada
and Mexico arrives by vehicle, we are left with 3 percent that is
imported by rail or air. We adjust the total retail value of highly
perishable produce and seafood from Canada and Mexico to account for
this 3 percent. Table 21 of this document shows the lost value for the
20 percent of perishable products arriving by rail and air from Canada
and Mexico that may have to resubmit prior notice when the minimum
prior notice time is 4 hours.
For Central American countries, it is probable that most, if not
all, of their perishable products are imported to the United States by
air. Therefore, for the highly perishable produce and seafood coming
from the Central American region, we assume that 97 percent of the
perishable produce and seafood from Central America is shipped to the
United States by air. We adjust the total retail value of the
perishable products from Central America to reflect that 97 percent of
the total value that arrives in the United States by air. Table 21 of
this document shows the loss of value for those 20 percent of air
shipments from Central America for which prior notice was resubmitted
under option 5.
[GRAPHIC] [TIFF OMITTED] TR10OC03.084
Table 22 of this document presents a summary of the costs
associated with option 5, including the costs of the option at the OMB-
recommended discount rates of 3 and 7 percent.
[[Page 59044]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.085
e. Option 6: Minimum prior notice timeframe of 2 hours before
arrival for vehicles, 4 hours before arrival for rail and air, and 8
hours before arrival for vessels; electronic submission of information;
any change in information requires resubmission (interim final rule).
Option 6 requires that prior notice be submitted 2 hours before arrival
for articles of food being imported by vehicle and 4 hours before
arrival for articles of food being imported by rail or air modes of
transportation.
Option 6 requires that prior notice be submitted 8 hours before
arrival for articles of food being imported by vessel. We do not
specifically address food import by vessel in this option because this
mode of transport will not be constrained by an 8-hour minimum prior
notice timeframe. The costs of this option for vessels will be the same
as in the previous options.
i. Two-hour minimum prior notice time for food arriving by vehicle.
Importers of perishable products from Canada and Mexico, whose articles
of food arrive in the United States by vehicle, will have to submit
prior notice 2 hours before arrival. This short, minimum submission
time frame should eliminate the probability of having to resubmit prior
notice for all but 5 percent of those perishable products imported from
Canada and Mexico.
OASIS data indicates that approximately 44 percent of all imported
food shipments used land transportation to arrive in the United States
for fiscal year 2002. These shipments must come from Canada and Mexico
(or in some cases transshipped), as these are the countries that have
land borders with the United States. OASIS data shows that only about 2
percent of imported food shipments arrived in the United States by rail
in 2002, and less than 1 percent of shipments arrived from Canada and
Mexico by air. Thus, at least 97 percent of all imported food shipments
arriving from Canada and Mexico used vehicles as the mode of transport.
Using this 97 percent estimate, we calculate the proportion of the
total retail value of highly perishable produce and seafood from Canada
and Mexico that arrives in the United States by vehicle. This new
retail value, 97 percent of the total value, is then used to calculate
the lost product value for the 5 percent of highly perishable produce
and seafood from Canada and Mexico for which importers would have to
resubmit the prior notice when the minimum submission time is 2 hours.
Table 23 of this document shows the loss in value caused by the
cancelled and resubmitted prior notice information for the 5 percent of
imported Mexican and Canadian perishable seafood and produce affected.
We do not include the lost value for perishable seafood and produce
imported from Central America in table 23 of this document since
perishable products from Central America are most likely flown into the
United States. We also do not include the cost of truck time with this
option since the minimum prior notice time for articles of food
arriving by vehicle is only 2 hours. Given current border wait times
and manufacturing/processing facility distance from the U.S. border, it
is unlikely that trucks will have to wait to enter the United States
because of prior notice requirements. We expect that some delays will
occur, but that they will be relatively rare and will impose little
additional cost compared with a 1-hour minimum prior notice time. We
therefore do not include any additional truck time costs for this
option.
[[Page 59045]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.086
ii. Four-hour minimum prior notice time for food arriving by rail
and air. The 4-hour minimum submission time for prior notice applies to
articles of food imported by rail and air modes of transportation. A 4-
hour minimum prior notice timeframe for these modes of transportation
could be constraining for products arriving from the countries
bordering the United States.
Since we are assuming that 97 percent of food imported from Canada
and Mexico arrives by vehicle, we are left with 3 percent that is
imported by rail or air. We adjust the total retail value of highly
perishable produce and seafood from Canada and Mexico to account for
this 3 percent. Table 24 of this document shows the lost value for the
20 percent of perishable products arriving by rail and air from Canada
and Mexico that may have to resubmit prior notice when the minimum
prior notice timeframe is 4 hours.
For Central American countries, it is probable that most, if not
all, of their perishable products are imported to the United States by
air. Therefore, for the highly perishable produce and seafood coming
from the Central American region, we assume that 97 percent of the
perishable produce and seafood from Central America is shipped to the
United States by air. We adjust the total retail value of the
perishable products from Central America to reflect that 97 percent of
the total value that arrives in the United States by air. Table 24 of
this document shows the loss of value for those 20 percent of air
shipments from Central America for which prior notice was resubmitted
under option 6.
[[Page 59046]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.087
Table 25 of this document presents a summary of the costs
associated with option 6, including the costs of the option at the OMB-
recommended discount rates of 3 and 7 percent.
[GRAPHIC] [TIFF OMITTED] TR10OC03.088
f. Option 7: Prior notice required 4 hours before arrival;
electronic submission of information; allow changes to the prior notice
submission up to 1 hour before arrival. We now take the estimates in
option 4 and adjust them to account for the effects of allowing changes
to the prior notice submission without requiring resubmission. Although
the original submission time of 4 hours before arrival is relatively
short, allowing changes to the original submission, in the form of
electronic amendments and updates, would improve the flow of import
traffic by reducing the notice resubmission rate. The smaller
resubmission rate would reduce the loss of value for perishable foods
that might otherwise have to wait extra time before crossing the U.S.
border.
Prior notice requires that certain information about each imported
food product be relayed to FDA before
[[Page 59047]]
arrival. A more flexible entry screen that allows for updates and
amendments to some notice information would reduce the likelihood that
the original notice would have to be resubmitted by importers, thus
lessening the time burden, and therefore the costs of prior notice.
Even a 1 hour amendment and updates to prior notice would provide some
flexibility for importers in industries where certain information, such
as the type of the product being imported and the quantity of the
article to be imported, may change or is not known until just before
shipping.
It is also important to note here that we assume that the 1 hour
time FDA has estimated that it takes to fill out each prior notice is
sufficient for this option, even with the opportunity of amending prior
notice information. This time is sufficient because amending or
updating a particular item in the prior notice submission should only
take a few seconds to a few minutes in time.
If prior notice can be amended and updated, fewer resubmissions
would occur. For this option, then, with amendment and updates, we will
assume that the number of prior notice resubmissions necessitated by
changes in information on the notice would be reduced from 20 percent
(as in option 4) to 2.5 percent. FDA believes that the resubmission
rate for a 4-hour prior notice time with 1-hour amendment will result
in about the same resubmission rate as option 2 (a straight, 1 hour
before arrival, prior notice timeframe). FDA believes these two
timeframes will cause about the same resubmission rate, because both
arrival timeframes are relatively short and both are within the
timeframe of 4 hours that was suggested by Canadian and Mexican
perishable products importers.
Compared with option 4 (4 hours prior notice with no amendments or
updates), option 7 would save 4 hours wait time per prior notice
submission that can be amended or updated. Prior notice submissions
that cannot be amended or updated, however, would lead to waits of 4
hours. Those 2.5 percent of shipments for which prior notice cannot be
amended or updated would wait an extra 4 hours before being able to
cross the border. This wait translates into 2.4 percent of the
perishable produce life span (4 hours out of 168 hours) and 8.3 percent
of the perishable seafood life span (4 hours out of 48 hours). Table 26
of this document shows the costs of submitting prior notice for a 4-
hour minimum time before arrival, with a 1-hour timeframe before
arrival for submitting amendment and updates, for Canadian, Mexican,
and Central American perishable produce and seafood.
[GRAPHIC] [TIFF OMITTED] TR10OC03.089
Table 27 of this document compares the reduction in the costs of
this interim final rule if amendments and updates to prior notice are
allowed (option 7), as opposed to the no-amendment 4-hour option 4.
[[Page 59048]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.090
Although submitters can amend prior notice information with this
option, we assume that those 2.5 percent of prior notice submissions
that cannot use the amendment, but instead have to wait an additional 4
hours to cross the border, would incur at least some truck costs as a
result of this wait time. Therefore, we will assume that 2.5 percent of
the 2.3 million lines that entered the United States by ground
transportation in fiscal year 2002 (based on OASIS data) would pay for
an additional 4 hours of truck time per line. We use 2.5 percent as the
percentage of trucks delayed to be consistent with our resubmission
rate of 2.5 percent when the prior notice submission timeframe is 4
hours before arrival with a 1-hour amendment option. Table 28 of this
document shows the costs of truck time associated with those prior
notices that cannot be amended.
Table 28.--Cost of Additional Carrier Time for Option 7
------------------------------------------------------------------------
------------------------------------------------------------------------
2002 OASIS import entry lines by ground transportation 2,300,000
(truck or train).......................................
Average number of lines per entry....................... 2.6
Total number of ground entries.......................... 884,615
2.5% of ground entries.................................. 22,115
Cost for 4 hours of carrier time ($250 per hour)........ $1,000
Total cost of truck time................................ $22,115,000
------------------------------------------------------------------------
Table 29 of this document presents a summary of the costs
associated with option 7. Also presented in table 29 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
[[Page 59049]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.091
g. Option 8: Minimum prior notice timeframe of 8 hours before
arrival; electronic submission of information; any change in
information requires resubmission (statutory default option). Option 8
is to issue an interim final rule that incorporates the default minimum
timeframe for prior notices as provided in the Bioterrorism Act. Pre-
proposal information and comments on the proposed rule indicated that
Canadian and Mexican produce growers and seafood processors are
concerned that the longer the minimum time required for the prior
notice, the less fresh their products will be when they reach U.S.
customers. Less-than-optimal fresh (i.e., lower quality) products would
result in a lower price paid for the imported produce or seafood
shipments, or possibly even the loss of a customer's business to a
domestic producer.
For importers of perishable products such as seafood and produce,
the 8-hour minimum time for prior notice is expected to change business
practices. How much importer, produce grower, and seafood processor
business practices will be affected by prior notice requirements will
depend on how early the orders are received compared with how early
prior notice must be submitted. Also, as the prior notice submission
time increases, the location of the exporter in relation to the U.S.
border becomes a more important factor in determining whether changes
in business practices are needed.
If the prior notice time for submission is 8 hours instead of 4
hours, the probability of having to resubmit prior notice information
will be greater. Now, instead of 20 percent of the importers of
perishable products from Canada, Mexico, and Central America having to
resubmit their notices, we will assume that the 8-hour submission
timetable means that 30 percent will have to resubmit their notices.
As explained in option 2, we based the resubmission rate
percentages for perishable products coming from Canada and Mexico on
comments FDA received indicating that 40 to 100 percent of the products
from these two countries are shipped from locations no more than 4
hours from the border. For shorter prior notice timeframes, starting
with the 4-hour option and moving downward in minimum prior notice
time, we halved the resubmission rate because every hour decrease in
required prior notice submission time will eliminate a significant
number of prior notice resubmissions for those facilities close to the
border. For options with longer timeframes, however, instead of
doubling the resubmission rate, we begin to add an additional 10
percent resubmission rate for each additional 4 hours of required prior
notice minimum submission time. We do this because, aside from
perishable products and rush orders, most foods are ordered in advance
of shipping and the quantities of such foods are easily identifiable;
these are orders that will not change and thus will not require
resubmission of prior notice.
Carriers of products requiring prior notice may not be able to
cross the border for 8 hours or longer, instead of 4 hours. This time
for prior notice represents 4.8 percent of the produce life span (8
hours out of 168 hours) and 16.7 percent of the seafood life span (8
hours out of 48 hours). Table 30 of this document shows the loss in
value caused by the resubmitted prior notice information for the 30
percent of imported Mexican, Canadian, and Central American perishable
seafood and produce affected.
[[Page 59050]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.092
For this 8-hour prior notice submission timeframe, we include
holding time costs paid to carriers of products to be imported. We add
in this cost in response to comments indicating that for longer
submission timeframes and for products located less than 8 hours from
the U.S. border, it is quite possible that the carrier would have to be
paid for additional waiting time over what had been established under
the current business practices.
We do not have information on the number of import entries that may
use additional truck time because of prior notice submission
timeframes. We will assume that 30 percent of the 2.3 million lines
that entered the United States by ground transportation in fiscal year
2002 (based on OASIS data) would pay for an additional 2 hours of truck
time per entry. We use 30 percent as the percentage of trucks delayed
to be consistent with our resubmission rate of 30 percent when the
prior notice submission timeframe is 8 hours before arrival. These
costs are summarized in table 31 of this document.
[GRAPHIC] [TIFF OMITTED] TR10OC03.093
Table 32 of this document presents a summary of the costs
associated with option 8. Also presented in table 32 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
[[Page 59051]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.094
h. Option 9: Prior notice required 8 hours before arrival;
electronic submission of information; allow changes to the prior notice
submission up to 1 hour before arrival. We now take the estimates in
option 8 and adjust them to account for the effects of allowing changes
to the prior notice submission. With an original submission time of 8
hours before arrival, it is likely that allowing changes to the
original submission, in the form of electronic amendments and updates,
would improve the flow of import traffic--especially since comments
indicated that between 40 and 100 percent of products coming from
Canada and Mexico are within 4 hours of a U.S. border. Regardless of
when the order is placed, if the exporting facility of the product is
located less than 8 hours from a U.S. border, allowing amendments and
updates to prior notice would reduce the notice resubmission rate, and
also reduce the loss of value for perishable foods that might otherwise
have to wait extra time before crossing the U.S. border.
Again, we note with this option, we assume that the FDA 1-hour time
estimate for filling out each prior notice is sufficient, even with the
option of amending prior notice information. This time is sufficient
because amending or updating a particular item in the prior notice
submission should only take a few seconds to a few minutes in time.
For this option, with amendment and updates, we will assume that
the number of prior notice resubmissions necessitated by changes in
information on the notice will be reduced from 30 to 5 percent.
Although the amendment will eliminate the need for notice resubmission
for many entries, the uncertainty associated with some shipment
information increases as the prior notice minimum submission timeframe
increases. Thus, for an 8-hour original submission time frame, it is
unlikely that the allowance of an amendment will reduce the prior
notice resubmission rate to 2.5 percent as presented in option 7.
Instead, we assume that an 8-hour prior notice submission timeframe
with a 1-hour amendment will reduce the prior notice resubmission rate
to 5 percent.
Option 9 saves 8 hours of wait time per entry for prior notices
that can be amended or updated. The 5 percent of imports for which the
prior notice cannot be amended, however, will end up waiting at the
border or at the manufacturing/processing facility an additional 8
hours before arriving in the United States, which is 4.8 percent of the
perishable produce life span (8 hours out of 168 hours) and 16.7
percent of the perishable seafood life span (8 hours out of 48 hours).
Table 33 of this document shows the costs of submitting prior notice
for an 8-hour minimum time, with a 1-hour amendment and updates, for
Canadian, Mexican, and Central American perishable produce and seafood.
[[Page 59052]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.095
Table 34 of this document compares the reduction in the costs of
this interim final rule if an amendment and update to prior notice is
allowed (option 9) as opposed to the no-amendment option 8.
[[Page 59053]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.096
Although submitters can amend prior notice information with this
option, we assume that those 5 percent of entries that cannot use the
amendment, but instead have to wait an additional 8 hours before
arriving in the United States would incur at least some truck costs as
a result of this wait time. We will therefore assume that 5 percent of
the 2.3 million lines that entered the United States by ground
transportation in fiscal year 2002 (based on OASIS data) would pay for
an additional 8 hours of truck time per prior notice submission. We use
5 percent as the percentage of trucks delayed to be consistent with our
resubmission rate of 5 percent when the prior notice submission
timeframe is 8 hours before arrival with a 1-hour amendment option.
Table 35 shows the costs of truck time associated with those prior
notices that cannot be amended.
[GRAPHIC] [TIFF OMITTED] TR10OC03.097
Table 36 of this document presents a summary of the costs
associated with option 9. Also presented in table 36 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
[[Page 59054]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.098
i. Option 10: Prior notice received by 12 noon of the calendar day
before arrival; electronic submission of information; any change in
information requires resubmission. This option requires that prior
notice be submitted no later than 12 noon of the calendar day before
the expected day of arrival. Under this option, prior notice submitters
will have to let FDA know of the incoming food shipment at least 12
hours before the shipment reaches the U.S. port of arrival. This option
would likely cause a change in importer business practices and the
business practices of their clients in much the same way as option 8,
but the potential loss of product value is higher because the minimum
prior notice time has increased.
Again, how business practices would be affected by prior notice
requirements depends on how early the invoice orders are received, when
the truck is loaded, and when prior notice is submitted.
As before, we assume that as the minimum notice time increases, the
likelihood of a resubmission also increases. Instead of 30 percent of
the importers of perishable products from Canada and Mexico having to
cancel their original prior notices and resubmit, we will assume that
the 12-hour submission timetable means that 40 percent will have to
cancel and resubmit their notices.
We increase the percentage of resubmission this time by 10 percent
because as the prior notice time frame increases relative to the time
of arrival, it becomes more likely that the prior notice information
will change after the notice is submitted to FDA, thus requiring
resubmission of the notice. The transporters of products with
resubmitted prior notices may then have to wait as long as 12 hours,
which affects 7.1 percent of the produce life span (12 hours out of 168
hours) and 25 percent of the seafood life span (12 hours out of 48
hours).
Table 37 of this document shows the loss in value caused by the
resubmitted prior notice information for the 40 percent of imported
Mexican, Canadian, and Central American perishable seafood and produce
that might be affected.
[[Page 59055]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.099
For option 10, we also include the costs of additional carrier time
that may be necessary due to the longer minimum prior notice submission
timeframe. For option 8 we had included the cost of an additional 2
hours of truck time for 30 percent of ground-based import entry lines;
for this option we will include the cost of an additional 4 hours of
truck time for 40 percent of ground-based import entry lines. We expect
the percentage of imported shipments that need extra truck time, and
the truck time itself, to increase as the prior notice submission
timeframe increases. These costs are summarized in table 38 of this
document.
[GRAPHIC] [TIFF OMITTED] TR10OC03.100
Table 39 of this document presents a summary of the costs
associated with option 10. Also presented in table 39 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
[[Page 59056]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.101
j. Option 11: Prior notice received by 12 noon of the calendar day
before arrival; electronic submission of information; allow changes to
the prior notice submission up to 1 hour before arrival. We now take
the estimates in option 10 and adjust them to account for the effects
of allowing changes to the prior notice submission. Since prior notice
must be submitted by 12 noon on the calendar day before arrival, it is
reasonable to expect that not all the information required on a prior
notice would be final.
The prior notice requires the addresses of the submitter, importer,
owner, and consignee, as well as the carrier, manufacturer, and grower
if known. Required information also includes the identity of the
article of food, its FDA Country of Production, the country from which
the food is shipped, its CBP entry identifier, the date, time, and
anticipated port of arrival, and planned shipment information.
Increasing the number of required fields that can be changed in the
prior notice before arrival reduces the likelihood that the information
would have to be completely resubmitted by importers. This change would
lessen the time burden, and therefore, the cost of having to submit
prior notice. Allowing a 1-hour amendment and updates to prior notice
would provide some flexibility for importers in industries where some
of the required information, such as the specific type of food (i.e.,
codfish instead of fish) of the product being imported, may change or
is not known until just before shipping. Again we note that we assume
that 1-hour time FDA estimates that it takes to fill out each prior
notice is sufficient, even with the option of amending prior notice
information. This time is sufficient because amending or updating a
particular item in the prior notice submission should only take a few
seconds to a few minutes.
For this option with amendment and updates, we assume that the
number of prior notice resubmissions necessitated by changes in
information on the notice would be reduced from 40 percent (as in
option 10) to 10 percent. The notice resubmission rate for this option
is expected to be higher than previous options with amendments because
the original submission must be given by 12 noon on the calendar day
before arrival. The lengthening of the minimum prior notice time period
from 8 hours with amendment (option 9) to 12 noon the calendar day
before arrival with amendment (this option) suggests that there would
be significantly more prior notices initially submitted for which all
required information has not been completely determined. Less-than-
final information on original prior notice submissions increases the
likelihood that the notice will require revision, either in the form of
an amendment or in the form of a total resubmission of the original
prior notice.
Option 11 saves 12 hours wait time per entry line that can be
amended or updated for the prior notice over the time used in option 9.
Those shipments, whose prior notice must be completely resubmitted,
would wait an additional 12 hours at the manufacturing/processing
facility or at the U.S. border; 7.1 percent of the perishable produce
life span (12 hours out of 168 hours) and 25 percent of the perishable
seafood life span (12 hours out of 48 hours). Table 40 of this document
shows the costs of submitting prior notice for a 12-hour minimum time,
with a 1-hour timeframe for amendment and updates before arrival, for
Canadian, Central American, and Mexican perishable produce and seafood.
[[Page 59057]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.102
Table 41 of this document compares the reduction in the costs of
this rule if an amendment and update to prior notice is allowed (option
11) as opposed to the no-amendment option 10.
[[Page 59058]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.103
Although submitters can amend prior notice information with this
option, we assume that those 10 percent of entry lines that cannot be
amended, but instead have to wait an additional 12 hours to arrive in
the United States would incur at least some truck costs corresponding
to this wait time. Therefore we will assume that 10 percent of the 2.3
million lines that entered the United States by ground transportation
in fiscal year 2002 (based on OASIS data) would pay for an additional
12 hours of truck time per line. We use 10 percent as the percentage of
trucks delayed to be consistent with our resubmission rate of 10
percent when the prior notice submission timeframe is noon the calendar
day before arrival with a 1-hour amendment option. Table 42 of this
document shows the costs of truck time associated with those prior
notices that cannot be amended.
Table 42.--Cost of Additional Carrier Time for Option 11
------------------------------------------------------------------------
------------------------------------------------------------------------
2002 OASIS import entry lines by ground transportation 2,300,000
(truck or train).......................................
Average number of lines per entry....................... 2.6
Total number of ground entries.......................... 884,615
10% of ground entries................................... 88,462
Cost for 12 hours of carrier time ($250 per hour)....... $3,000
Total cost of truck time................................ $265,386,000
------------------------------------------------------------------------
Table 43 of this document presents a summary of the costs
associated with option 11. Also presented in table 43 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
[[Page 59059]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.104
k. Option 12: Prior notice received by 12 noon of the calendar day
before arrival; electronic submission of information; allow changes to
the prior notice submission up to 2 hours before arrival (proposed
rule). Option 12 is the option that was originally proposed by FDA.
This option requires prior notice submission by noon on the calendar
day before arrival, with updates and amendments that can be submitted
up to 2 hours before scheduled arrival at a U.S. port. We re-present
the option here for comparison, as the costs attributable to each
option have changed significantly since the proposed rule stage.
For this option with amendment and updates, we assume that the
number of prior notice resubmissions necessitated by changes in
information on the notice would be reduced from 40 percent (as in
option 10) to 15 percent. The notice resubmission rate for this option
is expected to be higher than previous options with amendments because
the original submission must be given by 12 noon on the calendar day
prior to arrival and the minimum amendment timeframe before arrival is
now 2 hours instead of 1 hour.
Option 12 saves 12 hours wait time per entry line that can be
amended or updated for the prior notice over the time used in option
10. Those shipments whose prior notice must be completely resubmitted
however, would wait an additional 12 hours at the manufacturing/
processing facility or at the U.S. border; 7.1 percent of the
perishable produce life span (12 hours out of 168 hours) and 25 percent
of the perishable seafood life span (12 hours out of 48 hours). Table
44 of this document shows the costs of submitting prior notice for a
12-hour minimum time, with a 2-hour timeframe for amendment and updates
before arrival, for Canadian, Central American, and Mexican perishable
produce and seafood.
[[Page 59060]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.105
Although submitters can amend prior notice information with this
option, we assume that those 15 percent of entry lines that cannot be
amended, but instead have to wait an additional 12 hours to arrive in
the United States would incur at least some truck costs corresponding
to this wait time. Therefore we will assume that 15 percent of the 2.3
million lines that entered the U.S. by ground transportation in fiscal
year 2002 (based on OASIS data) would pay for an additional 12 hours of
truck time per line. We use 15 percent as the percentage of trucks
delayed to be consistent with our resubmission rate of 15 percent when
the prior notice submission timeframe is noon the calendar day before
arrival with a 2-hour amendment option. Table 45 of this document shows
the costs of truck time associated with those prior notices that cannot
be amended.
[GRAPHIC] [TIFF OMITTED] TR10OC03.106
Table 46 of this document presents a summary of the costs
associated with option 12. Also presented in table 46 of this document
are the present values of the costs associated with this option using
the OMB-recommended discount rates of 3 and 7 percent.
[[Page 59061]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.107
4. Summary of Options
Table 47 of this document gives a summary of the costs associated
with the prior notice rule for each option presented. The costs
associated with the prior notice requirements are included for each
option for all modes of transportation. These costs include the
following items: Learning the rule, coordinating the required
information, acquiring computer equipment, and annual submission costs
for all imported food shipments. The cost of lost value for perishable
products is included in each option calculation depending on mode of
transportation and minimum prior notice submission time. Lost truck
time is included for options with longer timeframes.
BILLING CODE 4160-01-P
[[Page 59062]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.108
BILLING CODE 4160-01-C
[[Page 59063]]
Sensitivity analysis. We estimate that the costs of the interim
final rule (option 6) will be about $367 million in the first year and
$261 million in later years. At a 7 percent discount rate, the present
value of the costs of the interim final rule, discounted 20 years into
the future, would be about $3 billion; for a discount rate of 3
percent, the present value costs would be $4 billion. These estimates
rely on several important assumptions:
[sbull] In option 6, for perishable products from Canada, Mexico,
and Central America: 5 percent of prior notices will need to be
resubmitted if the notice must be submitted 2 hours before arrival for
vehicles; 20 percent of prior notices will need to be resubmitted if
the notice must be submitted 4 hours before arrival for air and rail.
[sbull] The minimum entry time for food shipments imported over
land and by air is a constraining factor for those importers who use
these modes of transportation. The additional costs for shipments made
over land and by air are greater for a specified minimum prior notice
time, the closer the facility is to the U.S. border. Shipments arriving
by sea are not likely to be affected by a specified minimum prior
notice time.
[sbull] The retail value of imported fresh seafood and produce is
100 percent higher than its wholesale value.
[sbull] The number of entry lines requiring prior notice will not
increase over time.
[sbull] Prior notice must be submitted for informal food entries,
i.e., international mail.
[sbull] BRASS is not compatible with submitting prior notice.
We now present a sensitivity analysis, which shows how our
estimates of costs for the interim final rule change if we use
different assumptions. We substitute the following assumptions for
those used previously:
[sbull] In option 6 for perishable products from Canada, Mexico,
and Central America: 10 percent of prior notices will need to be
resubmitted when the prior notice time is 2 hours before arrival for
vehicles; 40 percent of prior notices will need to be resubmitted if
the prior notice must be submitted 4 hours before arrival for shipments
arriving by rail and air.
[sbull] The retail value of imported fresh seafood and produce is
200 percent higher than its wholesale value.
[sbull] The number of entry lines requiring prior notice will
increase 3 percent per year.
[sbull] Prior notice does not need to be submitted for informal
food entries, i.e., international mail.
[sbull] BRASS is compatible with submitting prior notice.
Tables 48 and 49 of this document show the results of the
sensitivity analysis. The tables show that the estimated cost of the
interim final rule is most sensitive to the assumed fraction of prior
notices that will need to be changed. The present value of the interim
final rule is most sensitive to the rate of discount.
[GRAPHIC] [TIFF OMITTED] TR10OC03.109
[[Page 59064]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.110
5. Benefits
The FDA prior notice system will provide FDA with enhanced
knowledge of what articles of food are being imported or offered for
import into the United States including the anticipated port of
arrival, the country of production, and the specific product identity.
Requiring prior notice of imported food shipments and defining the
required data information will therefore improve FDA's ability to
detect accidental and deliberate contamination of food and to deter
deliberate contamination.
Currently, FDA does not receive much advance notice about food
products entering the United States from foreign sources, or the
location of the food's anticipated port of arrival. With the
information required by this interim final rule, FDA will know in
advance what articles of food are being imported or offered for import,
before they arrive at the port. In the event of a credible threat for a
specific product or a specific manufacturer/processor, for example, FDA
will be able to mobilize and assist in the detention and removal of
products that may be a serious health threat to human or animals.
FDA plans to review prior notices in a central location, on a 24/7
basis. These persons will decide on a case-by-case basis whether the
article of food needs to be held. Because prior notice will be linked
through ABI/ACS system in most instances, if FDA wishes to stop and
hold a shipment for examination, inspection, sampling, or other purpose
and does not have personnel at the needed location, pursuant to a
Memorandum of Understanding between FDA and CBP, CBP will act on FDA's
behalf until FDA personnel can reach the location. The prior notice
system linked through ABI/ACS will allow FDA to send messages to the
screens of individual CBP staff, ensuring that time sensitive
information is received and acted upon by the appropriate persons.
Having notice of an article of food imported or offered for import into
the United States before it reaches a U.S. port will allow FDA
personnel to be ready to respond to shipments that appear to pose a
significant and immediate serious risk to public health.
Historical evidence suggests that a terrorist or other intentional
strike on the food supply is a low-probability, but potentially high-
cost event. FDA has conducted its own assessment of the vulnerability
of the U.S. food supply and additionally has commissioned two threat
assessments, one through the Battelle Memorial Institute and a second
through the Institute of Food Technologists. These assessments
determined the most serious risks of intentional contamination during
various stages of food production and distribution. The results of
these assessments are classified. We have also received intelligence
information regarding threats to the food supply that are guiding our
food security efforts. Nonetheless, FDA lacks data to estimate the
likelihood of a strike occurring. Without knowing the likelihood of a
strike occurring, we cannot quantitatively measure the reduction in
probability of an event occurring.
We can, however, show the potential risk associated with
contaminated imported foods. Many past outbreaks have been traced to
imported foods (Refs. 12 and 13); table 50 of this document gives some
examples. An intentional attack on the food supply that sought to
disrupt the food supply and sicken many U.S. citizens could be much
larger than the examples given in table 50.
The potential hazard associated with a single shipment of imported
food is large. For example, a single line entry from OASIS for a
truckload of imported cantaloupe (gross weight 1,000 lb) represents 510
lb (231,332 grams) (g) of edible food, or 1,652 (140 g) servings. If an
entire line or shipment is contaminated, then that number of servings
represents the potential
[[Page 59065]]
exposure to the hazard. The FDA prior notice system alone will not
prevent such exposures, but by increasing the amount of information
available and giving FDA notice in advance of arrival, an essential
component of the barrier against accidental or deliberate contamination
of food is formed. FDA is better able to integrate intelligence,
vulnerability, and entry data to plan import surveillance activities as
a result.
[GRAPHIC] [TIFF OMITTED] TR10OC03.111
We can examine the high costs of a potential terrorist event by
comparing costs of responding to a terrorist event with and without the
advantage of having the FDA prior notice system. For example, if U.S.
officials or FDA receives intelligence concerning the possibility of an
intentional contamination of an incoming food shipment, in absence of
prior notice, even with information on the type of food product,
officials would be unlikely to know when and where the food was
expected to cross U.S. borders. In this case, it is likely that
officials would slow down the movement of food shipments through the
border ports or possibly even close down some ports of entry to prevent
the contaminated articles from entering the United States.
Information on the west coast port lock-out during Fall 2002,
indicated that the closing of 29 major west coast ports cost the U.S.
economy $1 billion a day (Refs. 14 and 15). Given that there are 361
ports of entry for the entire United States, if U.S. officials had to
close all ports to prevent contaminated food from entering the country,
the U.S. economy could lose upwards of $12.5 billion each day the ports
remain closed. This cost exceeds the first year costs ($367 million),
the annual costs ($261 million), and the present value of costs ($3
billion at the 7 percent discount rate and $4 billion at the 3 percent
discount rate) for the chosen option of this rule. Thus, having the FDA
prior notice system does not eliminate, but may significantly reduce
the costs of a terrorist attack on the food supply as compared to not
having the system.
Table 51.--Cost Benefit Summary Table
------------------------------------------------------------------------
Annualized costs Annualized costs
over 20 years at over 20 years at
7% discount rate 3% discount rate
($ millions) ($ millions)
------------------------------------------------------------------------
Option 5--2 hour prior notice $272 $269
for vehicle, 4 hour for rail
and air, 8 hour vessels
(interim final rule)...........
Benefits--FDA will know in advance what articles of food are being
imported or offered for import, before they arrive at the port. In the
event of a credible threat, FDA will be able to mobilize and assist in
the detention and removal of specific products that may pose a serious
health threat to human or animals.
------------------------------------------------------------------------
B. Small Entity Analysis (or Final Regulatory Flexibility Analysis)
FDA has examined the economic implications of this interim final
rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612).
If a rule has a significant economic impact on a substantial number of
small entities, the Regulatory Flexibility Act requires agencies to
analyze regulatory options that would lessen the economic effect of the
rule on small entities consistent with statutory objectives. FDA finds
that this interim final rule will have a significant economic impact on
a substantial number of small entities.
1. Number of Establishments Affected
FDA finds that this interim final rule would affect 77,427 U.S.
importers. Most of these importers have fewer than 500 employees, thus
making them small
[[Page 59066]]
businesses as defined by the Small Business Administration. Because
most of the importers affected are small, all options considered in the
Benefit-Cost Analysis in section IV.A of this document are regulatory
relief options.
A few comments stated that FDA's analysis of the impact of prior
notice on small businesses was inadequate. The comments also wished to
see a breakdown of costs of the rule per small business by industry
sector. Unfortunately, FDA does not have detailed information on which
businesses subject to this interim final rule are small, nor did
comments provide such information. Therefore, FDA cannot perform a
detailed analysis of the costs per small business by industry sector.
With limited data, FDA can estimate an average cost per importer for
some of the prior notice cost categories, estimate some costs of the
rule per retail establishment, and provide an average estimate of cost
per establishment if the costs of the rule were evenly distributed
across the supply chain.
2. Costs per Entity
This interim final rule requires FDA be notified of incoming
products electronically before the food arrives at a U.S. port. The
annual cost of doing so is about $2,400 per submitter (based on $187.5
million in notification costs/77,427 U.S. importers). This calculation
is presented in table 52 of this document. Also presented in table 52
is the cost per importer to learn about the prior notice interim final
rule and to coordinate the information that needs to be submitted; the
costs per importer of these two activities are about $850 and $400,
respectively.
As discussed and shown in tables 1B and 2 of this document, about
3,100 U.S. importers are estimated to not have electronic transmitting
capacity and will have to obtain computer equipment (at a cost of about
$2,000 per importer) and Internet access (at a cost of about $240
annually) in order to comply with this interim final rule. FDA could
not provide flexibility for those importers who do not have electronic
transmitting capacity, because paper notices could not be submitted in
the prior notice timeframe and would therefore actually be more
burdensome to importers, and because FDA would not be able to receive,
review, and respond to paper prior notices that are submitted on a
routine basis.
This interim final rule will cause some loss of product value if
the prior notice requirement causes perishable products to have to wait
any length of time before arriving at a U.S. port. The costs of lost
product value vary with the required notice time. FDA does not have
information on the subset of importers who will be affected by these
costs; therefore, we cannot calculate a cost per importer for these
potential losses. We do discuss the various costs associated with this
possibility in the options outlined previously.
Table 52 of this document shows the average costs per importer to
learn the rule, coordinate information, and submit prior notice. Table
52 also shows the average costs to the importer to absorb the costs of
not being able to use BRASS and to absorb costs of lost value of
perishable products. Table 52 also shows these average costs per retail
establishment and per establishment across the supply chain. Numbers
for establishments come from the County Business Patterns, U.S. Census,
and Non-Employer statistics. A complete discussion of these
establishment numbers can be found in the FDA Registration of Food
Facilities interim final rule (Ref. 20).
[GRAPHIC] [TIFF OMITTED] TR10OC03.112
3. Additional Flexibility Considered
Because of the requirements of the Bioterrorism Act, FDA is
precluded from selecting some of the options that typically would be
considered to lessen the economic effect of the interim final rule on
small entities, including granting an exemption to small entities. FDA
concludes that it would be inconsistent with section 307 of the
Bioterrorism Act to allow small entities a later effective date, since
the Bioterrorism Act establishes an effective date for prior notice
that applies to FDA-regulated food imported or offered for import into
the United States, whether or not FDA has issued a final rule by this
deadline. Thus, FDA concludes that Congress intended for prior notice
to apply to FDA-regulated food by the effective date established in the
Bioterrorism Act.
C. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law
104-4) requires cost-benefit and other analyses before any rulemaking
if the rule would include a ``Federal mandate that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more (adjusted annually
for inflation) in any 1 year.'' The current inflation-adjusted
statutory threshold is $113 million. FDA has determined that this
interim final rule is significant under the Unfunded Mandates Reform
Act. FDA has carried out the cost-benefit analysis in preceding
sections (see table 47 of this document for the total costs). The other
requirements under the Unfunded Mandates Act of 1995 include assessing
the rule's effects on the following factors:
[[Page 59067]]
[sbull] Future costs;
[sbull] Particular regions, communities, or industrial sectors;
[sbull] National productivity;
[sbull] Economic growth;
[sbull] Full employment;
[sbull] Job creation; and
[sbull] Exports.
The issues listed in the bullets are covered in detail in the cost
benefit analysis of the preceding sections, with the exception of the
trade effects of this interim final rule, which we will discuss here.
Although most of the information required for prior notice is
already supplied to CBP when importing food products, this new notice
requirement may cause a reduction of imports of certain food products
into the United States. For example, food manufacturers, processors, or
growers may choose to stop exporting food products to the United States
if the additional costs of complying with the prior notice increase the
price of the imported product (or perhaps decrease the quality of the
product) to the point where they cannot compete with a domestically-
grown or produced product. This may be the case for food products that
are grown or produced in the United States with an elastic enough
supply to meet consumer demand without large increases in price. For
example, if Florida-grown and California-grown oranges meet the demand
for the fruit in this country at or close to current prices, then it is
unlikely that the United States will import many oranges from other
countries, if the price of the imported product rises (or the product
quality is lowered) because of the prior notice requirement.
On the other hand, for example, there are products for which
substitutes, and more specifically, U.S. grown or produced substitutes,
are not available. In these cases, and in cases where U.S. demand for
the product greatly exceeds domestic supply, importers will pass along
to the consumer any increase in price for the product brought about by
the prior notice requirement (as long as the quality and other
attributes of the product remain intact). For example, exotic fruits
such as coconuts, mangoes, and papayas are not grown in significant
quantities in the United States; if the demands for those fruits are
relatively inelastic, there will not be a significant decrease in
quantity demanded in the United States when the importers raise the
price of the fruit to cover the costs of submitting prior notice.
D. SBREFA Major Rule
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) defines a major rule for the purpose of
congressional review as having caused or being likely to cause one or
more of the following: An annual effect on the economy of $100 million
or more; a major increase in costs or prices; significant adverse
effects on competition, employment, productivity, or innovation; or
significant adverse effects on the ability of U.S.-based enterprises to
compete with foreign-based enterprises in domestic or export markets.
In accordance with SBREFA, OMB has determined that this interim final
rule is a major rule for the purpose of congressional review.
VI. Paperwork Reduction Act of 1995
This interim final rule contains information collection provisions
that are subject to review by OMB under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501-3520). A description of these provisions is given
below with an estimate of the annual reporting burden. The estimate
includes the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing each collection of information, i.e., each prior notice.
Title: Prior Notice of Imported Food.
A. Description
Section 801(m) of the FD&C Act (21 U.S.C. 381(m)) requires prior
notice to the Secretary of Health and Human Services (the Secretary) of
an article of food that is being imported or offered for import into
the United States. Section 801(m)(1) of the FD&C Act states that the
Secretary shall require submission of notice providing the identity of
each of the following: The article of food; the manufacturer; the
shipper; the grower, if known at the time of notification; the
originating country; the shipping country; and the anticipated port of
arrival. Section 801(m)(2)(A) of the FD&C Act states that the Secretary
shall by regulation prescribe the time of submission of the
notification in advance of importation or the offering of the food for
import, which period shall be no less than the minimum amount of time
necessary for the Secretary to receive, review, and appropriately
respond to such notification, but may not exceed 5 days. FDA's prior
notification of imported food shipments interim final rule implements
these statutory provisions.
1. Comments on the Burden of Information Collection
Some comments on the proposed burden of information collection
stated that the information collection would not be necessary if ABI/
ACS could be used to submit the required information. Other comments
stated that the information collection was unproductive and unduly
burdensome for the benefits it would provide. Still other comments
stated that FDA had underestimated the hours associated with the
reporting burden.
FDA's agreement with CBP to allow most prior notices to be
submitted through ABI/ACS will greatly reduce the burden of this new
collection of information.
A few comments were concerned that FDA had underestimated the
proposed burden because they did not understand that FDA had calculated
the submitting burden based on import entries, not entry lines. For
each import entry, the prior notice or notices are expected to take
about an hour to file. The prior notice or notices for each import
entry would cover approximately 2.6 lines, with each line representing
a different article of food to be imported. For this interim final rule
burden of information analysis, FDA has clarified how the estimates
were calculated to allay the comments' concerns.
2. Information Collection Burden Estimate
FDA estimates the burden for this information collection as
follows:
[[Page 59068]]
[GRAPHIC] [TIFF OMITTED] TR10OC03.113
B. Hour Burden Estimate
1. Number of Establishments Affected
Using 2001 fiscal year information from OASIS (industry codes 02
through 52, 54, and 70 through 72), FDA has determined that there are
approximately 77,427 importers and consignees who receive shipments of
food imported or offered for import into the United States. FDA does
not have specific information on who will submit prior notice since
there are no restrictions on who can submit prior notice. Therefore,
FDA estimates prior notice submission information based on the 77,427
importers of food in OASIS.
2. New and Closing Importers
In addition to the U.S. importers currently in existence, in future
years new import businesses will open and some existing import
businesses will close. These new submitters would have to become
familiar with the FDA prior notice system and possibly obtain computer
equipment and Internet access to comply with prior notice requirements.
According to the Small Business Administration Office of Advocacy,
in 2001, about 10 percent of all businesses were new and 10 percent of
businesses closed. Using the 10 percent opening and closing business
statistic, and given that there are currently 77,427 U.S. importers,
FDA assumes that on a yearly basis 7,743 importers will leave the
market and 7,743 importers will enter the market.
3. Hour Burden Estimate Researching the Prior Notice Requirement
a. Learning the interim final rule. To become familiar with the
requirements for this interim final rule, FDA estimates that one
manager and two subordinates from each importing business will attend
an 8-hour training session on the prior notice regulation. This one-
time research burden for the existing importers is about 1,858,248
hours (3 people per firm x 8 hours x 77,427 importers). This portion of
the estimate is for 21 CFR part 1, subpart I, 1.279 through 1.285 and
is shown in row 1 of table 53 of this document.
In the years that follow the startup year for prior notice, it is
reasonable to expect a certain percentage of importing firms to enter
and leave the market. In addition to the first year burden to research
prior notice, it is expected that 185,832 hours will be spent annually
researching the prior notice requirement by the anticipated 7,743 new
importers entering the market annually that must learn about prior
notice (3 people per firm x 8 hours x 7,743 new importers). This
portion of the estimate is for 21 CFR part 1, subpart I, 1.279 through
1.285 and is shown in row 2 of table 53 of this document.
b. Coordinating the information. FDA assumes it will take about 2
business days (16 hours) for an administrative employee of the prior
notice-submitting firm to coordinate with others to establish new
business practices required to receive the information needed for prior
notice. We assume this set-up time is sufficient to coordinate
information for existing importing accounts. The total hours needed to
gather information for existing accounts is 1,238,832 (77,427 importing
firms x 16 hours per firm). This portion of the estimate is for 21 CFR
part 1, subpart I, 1.279 through 1.285 and is shown in row 1 of table
53 of this document. Thus, the total burden listed in row 1 is
1,858,248 hours + 1,238,832 hours = 3,097,080 one-time burden hours to
learn the rule and coordinate information.
In addition to the first year coordination burden, we expect
importing businesses to see a 10 percent turnover in their accounts.
Thus, in future years, importing firms will spend 123,883 hours to
gather information on their new accounts. This portion of the estimate
is for 21 CFR part 1, subpart I, 1.276 through 1.285 and is shown in
row 2 of table 53 of this document. Thus, the total burden listed in
row 2 is 185,832 hours + 123,883 hours = 309,715 one-time burden hours
for new firms to learn the rule and coordinate information.
4. Submitting Prior Notice
To estimate the repetitive effort of submitting a prior notice, FDA
assumes the activity takes 1 hour each time an import entry is
submitted. An import
[[Page 59069]]
entry, on average, constitutes 2.6 different articles of food; a prior
notice must be submitted for each article of food. Therefore we
estimate that submitting prior notice for each article of food will
take 23 minutes to complete (23 minutes per line = 60 minutes/2.6 lines
per entry). On an annual basis, submitting prior notice will take about
2.5 million hours (23 minutes (or 0.384 hours) per prior notice x 6.5
million notices). This estimate is for 21 CFR part 1, subpart I, 1.280
through 1.281 and is shown in row 3 of table 53 of this document.
FDA does not have information on how many prior notices will come
from each of the 77,427 importers. However, we assume that 6.5 million
prior notices will be submitted annually based on fiscal year 2002
OASIS information and estimates of prior notice capacity. We divide 6.5
million lines by the 77,427 importers to get an average annual response
frequency per importer of 84 notices.
5. Changes to a Confirmed Prior Notice
The annual total number of changes made by importers to confirmed
prior notices will vary depending on the minimum prior notice
submission time required. For example, more confirmed prior notices
will likely have to be changed if the minimum prior notice submission
time is noon the calendar day before arrival as opposed to a minimum
submission time of 2 hours before arrival. FDA's interim final rule
requires a minimum prior notice submission time for each of the
following situations: 2 hours before arrival for articles of food
imported by vehicle, 4 hours before arrival for articles of food
imported by rail and air, and 8 hours before arrival for articles of
food imported by vessel.
By combining the percentages by mode of transport and taking into
account the location of the exporting country, we assume that about 4
percent of all prior notices (260,000 notices) will have to be
resubmitted after confirmation is received from FDA. We assume that
changes in the prior notices will be minor adjustments; therefore, both
the cancellation of the original notice and the resubmission of the new
notice are estimated to take about 30 minutes. This estimate is for 21
CFR part 1, subpart I, 1.282 and is shown in row 4 of table 53 of this
document.
6. Refused Admission
Although FDA at this time does not have enough information to
estimate a percent of refusals under the new prior notice program, for
the purposes of this analysis FDA estimates the reporting burden
assuming a 2 percent refused admission rate.
An imported food product is subject to refusal under section
801(m)(1) of the FD&C Act if it arrives at the port of arrival with
untimely, inaccurate, or no prior notice. FDA estimates that about
130,000 of the annual prior notices will be subject to refusal (2
percent of 6.5 million prior notices).
If an article of food is refused under section 801(m)(1) of the
FD&C Act, the food must be held until the prior notice has been
correctly submitted or until the product is exported. FDA must be
notified of the location where the food has been or will be moved
within 24 hours of refusal.
In many cases, the location notice will be given as part of a
correction and resubmission, as described in the next section. FDA
estimates that 13,000 out of the 130,000 annual refusals will give the
location notice separately and that it will take about 15 minutes per
prior notice to notify FDA of the shipment's location. This will result
in about 3,250 hours (13,000 notices x 0.25 hours). This estimate is
for 21 CFR part 1, subpart I, 1.283(a)(2)(iv) and 1.285(c)(4) and is
shown in row 5 of table 53 of this document.
7. Correction and Resubmission of Prior Notice
FDA estimates that 97,500 out of the 130,000 annual refusals will
be because of inaccurate prior notice requiring resubmission, or
because no prior notice was submitted. FDA estimates that it will take
an hour to cancel, correct, and resubmit, or submit (in the case of no
notice) each of these 97,500 notices. This estimate is for 21 CFR part
1, subpart I, 1.283(a)(5)(ii) and is shown in row 6 of table 53 of this
document.
8. Exportation of Products Refused Admission
Some importers of articles of food that have been refused admission
into the United States will decide to export their product rather than
try to submit or resubmit prior notice. FDA estimates that this will
occur for only about 25 percent of the 130,000 articles refused
admission for inaccurate, untimely, or no prior notice. If an article
of food is refused admission under section 801(m)(1) of the FD&C Act
and exported, FDA requests, but does not require, that prior notice be
cancelled. FDA estimates that for these 32,500 articles of food, prior
notice will be cancelled 25 percent of the time and that this
cancellation will take 15 minutes per article. This estimate is for 21
CFR part 1, subpart I, 1.283(a)(7) and is shown in row 7 of table 53 of
this document.
9. FDA Review Request
If an article of food to be imported is refused under section
801(m)(1) of the FD&C Act or placed under hold under section 801(1), a
request may be submitted asking for an FDA review. FDA estimates that
of the 130,000 articles of food that are refused admission under
section 801(m)(1) of the FD&C Act or placed under hold under section
801(1) of the FD&C Act yearly, 10 percent will request an FDA review
(13,000 reviews). FDA estimates that it will take the requestor about 8
hours to prepare the factual and legal information necessary to request
a review. Thus, importers will spend about 104,000 hours on review
requests annually. This estimate is for 21 CFR part 1, subpart I,
1.283(a)(6)(i) through (a)(6)(iv) and 1.285(f)(1) through (f)(4) and is
shown in row 8 of table 53 of this document.
C. Capital Cost and Operating and Maintenance Cost Burden
Since all prior notices must be submitted electronically, we assume
that the 3,097 responsible parties without Internet access (4 percent
of the 77,427 importers) will have to purchase the appropriate computer
equipment and gain Internet access to transmit the information.
Assuming computer equipment costs each firm $2,000 and yearly Internet
access costs each firm $240 ($20 per month for 12 months), this results
in a one-time computer cost for these facilities of $6,194,000 and a
recurring Internet access cost of $743,000. This estimate is for 21 CFR
part 1, subpart I, 1.279 through 1.285 and is included in row 1 of
table 53 of this document.
For the 7,743 new firms that enter the import market each year, we
expect 310 of them to need to purchase computer equipment and obtain
Internet access. On an annual basis we expect new importers to spend
$620,000 on computers and $74,400 on Internet access to be able to
submit their prior notice information. This estimate is for 21 CFR part
1, subpart I, 1.279 through 1.285 and is included in row 2 of table 53
of this document.
The information collection provisions of this interim final rule
have been submitted to OMB for review.
Prior to the effective date of this interim final rule, FDA will
publish a notice in the Federal Register announcing OMB's decision to
approve, modify, or disapprove the information collection provisions in
this interim final rule. An agency may not conduct
[[Page 59070]]
or sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
VII. Analysis of Environmental Impact
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded under 21 CFR 25.30(h) that
this action is of a type that does not individually or cumulatively
have a significant effect on the human environment. Therefore, neither
an environmental assessment nor an environmental impact statement is
required.
VIII. Federalism
FDA has analyzed this interim final rule in accordance with the
principles set forth in Executive Order 13132. FDA has determined that
the rule does not contain policies that have substantial direct effects
on the States, on the relationship between the National Government and
the States, or on the distribution of power and responsibilities among
the various levels of government. Accordingly, the agency has concluded
that the rule does not contain policies that have federalism
implications as defined in the Executive order and, consequently, a
federalism summary impact statement is not required.
IX. References
The following references have been placed on display in the
Division of Dockets Management (see ADDRESSES) and may be seen by
interested persons between 9 a.m. and 4 p.m., Monday through Friday.
FDA has verified the Web site addresses, but is not responsible for any
subsequent changes to the Web sites after this document publishes in
the Federal Register.
1. Ruling NY G89921 (June 12, 2001), U.S. Bureau of Customs and
Border Protection, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://rulings.customs.gov 2. Bureau of Economic Analysis, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bea.doc.gov.
3. U.S. Department of Labor, Bureau of Labor Statistics,
``National Compensation Survey: Occupation Wages in the United
States, 2000, Summary 01-04,'' available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bls.gov/ncs/ocs/sp/ncbl0354.pdf
.
4. USDA Agricultural Marketing Service, March 2002, ``Fresh
Fruits and Vegetable Shipments,'' http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ams.usda.gov.
5. Kasmire, Dr. Robert F., Vegetable Marketing Specialist,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.thepacker.com/rbcs/handbookarticles/properis.htm,
accessed on 9.16.02.
6. USDA Agricultural Marketing Service produce point price
reports for various border crossings for the dates September 12,
2002, and September 16, 2002, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ams.usda.gov.
7. Florida Department of Agriculture and Consumer Services
(FDACS), http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ffva.com/rps.htm.
8. National Marine Fisheries Service, Fisheries Statistics and
Economics Division, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.st.nmfs.gov, accessed September 2002.
9. Florida Department of Agriculture and Consumer Services,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://doacs.state.fl.us/press/1999/090999.html and http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www
.ffva.com/rps.htm.
10. Center for Food Safety and Applied Nutrition, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cfsan.fda.gov/
[sim]dms/qa-sto8.html.
11. Small Business Administration Office of Advocacy, ``Small
Business by the Numbers'', May 2002, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.sba.gov/advo/.
12. Herwaldt B.L., M.L. Ackers, and Cyclospora Working Group,
``An Outbreak in 1996 of Cyclosporiasis Associated With Imported
Raspberries,'' New England Journal of Medicine, May 29, 1997, 1548-
1556.
13. Food Safety: Federal Efforts to Ensure the Safety of
Imported Foods Are Inconsistent and Unreliable, GAO Publication,
April 1998, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gao.gov 14. ``Port Lockout Could Harm U.S. Economy,'' http://.
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.firstcoastnews.net/news/2002-10-01/usw_portlockout.asp.
15. ``Transportation official says strike at U.S. port would
ripple across globe,'' http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.govexec.com/dailyfed/0202/022702gsn1.htm
.
16. ``The Informal Sector in El Salvador,'' Embassy of the
United States of America in El Salvador, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://sansalvador.usembassy.gov/
Select Economic Info (left column), then
select the first option ``Economic and Commercial Reports,
Updates,'' at next screen under Socio-Economic Reports, select the
last article ``The Informal Sector in El Salvador, 1999,'' and
Import Alert 1A1211, FDA Guidance, March 1998, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov/ora/_import_ia1211.html
.
17. Guidance for Industry, Importers and Filers, Food Security
Preventive Measures Guidance, FDA Publication, March 2003.
18. Investigations Operations Manual, FDA Publication, page 179.
19. FDA Registration of Food Facilities interim final rule,
published elsewhere in the issue of the Federal Register.
List of Subjects in 21 CFR Part 1
Cosmetics, Drugs, Exports, Food labeling, Imports, Labeling,
Reporting and recordkeeping requirements.
0
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
1 is amended as follows:
PART 1--GENERAL ENFORCEMENT REGULATIONS
0
1. The authority citation for 21 CFR part 1 continues to read as
follows:
Authority: 15 U.S.C. 1453, 1454, 1455; 19 U.S.C. 1490, 1491; 21
U.S.C. 321, 331, 332, 333, 334, 335a, 343, 350c, 350d, 352, 355,
360b, 362, 371, 374, 381, 382, 393; 42 U.S.C. 216, 241, 243, 262,
264.
0
2. Subpart I, consisting of Sec. Sec. 1.276 through 1.285, is added to
part 1 to read as follows:
Subpart I--Prior Notice of Imported Food
General Provisions
Sec.
1.276 What definitions apply to this subpart?
1.277 What is the scope of this subpart?
Requirements to Submit Prior Notice of Imported Food
1.278 Who is authorized to submit prior notice?
1.279 When must prior notice be submitted to FDA?
1.280 How must you submit prior notice?
1.281 What information must be in a prior notice?
1.282 What must you do if information changes after you have
received confirmation of a prior notice from FDA?
Consequences
1.283 What happens to food that is imported or offered for import
without adequate prior notice?
1.284 What are the other consequences of failing to submit adequate
prior notice or otherwise failing to comply with this subpart?
1.285 What happens to food that is imported or offered for import
from unregistered facilities that are required to register under 21
CFR part 1, subpart H?
General Provisions
Sec. 1.276 What definitions apply to this subpart?
(a) The act means the Federal Food, Drug, and Cosmetic Act.
(b) The definitions of terms in section 201 of the act (21 U.S.C.
321) apply when the terms are used in this subpart, unless defined
below.
(1) Calendar day means every day shown on the calendar.
(2) Country from which the article originates means FDA Country of
Production.
(3) Country from which the article is shipped means the country in
which the article of food is loaded onto the conveyance that brings it
to the United States or, in the case of food sent by international
mail, the country in which the article will be mail.
(4) FDA Country of Production means:
(i) For an article of food that is in its natural state, the
country where the article of food was grown, including harvested or
collected and readied for shipment to the United States. If an article
of food is wild fish, including seafood that was caught or harvested
outside the waters of the United States by a vessel that is not
registered in the United States, the FDA Country of Production is the
country in which the vessel is registered. If an article of food that
is in its natural state was grown,
[[Page 59071]]
including harvested or collected and readied for shipment, in a
Territory, the FDA Country of Production is the United States.
(ii) For an article of food that is no longer in its natural state,
the country where the article was made; except that, if an article of
food is made from wild fish, including seafood, aboard a vessel, the
FDA Country of Production is the country in which the vessel is
registered. If an article of food that is no longer in its natural
state was made in a Territory, the FDA Country of Production is the
United States.
(5) Food has the meaning given in section 201(f) of the act,
(i) Except for purposes of this subpart, it does not include:
(A) Food contact substances as defined in section 409(h)(6) of the
act (21 U.S.C. 348(h)(6)); or
(B) Pesticides as defined in 7 U.S.C. 136(u).
(ii) Examples of food include fruits, vegetables, fish, including
seafood, dairy products, eggs, raw agricultural commodities for use as
food or as components of food, animal feed (including pet food), food
and feed ingredients, food and feed additives, dietary supplements and
dietary ingredients, infant formula, beverages (including alcoholic
beverages and bottled water), live food animals, bakery goods, snack
foods, candy, and canned foods.
(6) Grower means a person who engages in growing and harvesting or
collecting crops (including botanicals), raising animals (including
fish, which includes seafood), or both.
(7) International mail means foreign national mail services.
International mail does not include express carriers, express
consignment operators, or other private delivery services.
(8) No longer in its natural state means that an article of food
has been made from one or more ingredients or synthesized, prepared,
treated, modified, or manipulated. Examples of activities that render
food no longer in its natural state are cutting, peeling, trimming,
washing, waxing, eviscerating, rendering, cooking, baking, freezing,
cooling, pasteurizing, homogenizing, mixing, formulating, bottling,
milling, grinding, extracting juice, distilling, labeling, or
packaging. Crops that have been cleaned (e.g., dusted, washed),
trimmed, or cooled attendant to harvest or collection or treated
against pests, waxed, or polished are still in their natural state for
purposes of this subpart. Whole fish headed, eviscerated, or frozen
attendant to harvest are still in their natural state for purposes of
this subpart.
(9) Port of arrival means the water, air, or land port at which the
article of food is imported or offered for import into the United
States, i.e., the port where the article of food first arrives in the
United States. This port may be different than the port where
consumption or warehouse entry or foreign trade zone admission
documentation is presented to the United States Bureau of Customs and
Border Protection (CBP).
(10) Port of entry, in sections 801(m) and 801(l) of the act, means
the port of entry as defined in 19 CFR 101.1.
(11) Registration number refers to the registration number assigned
by FDA under section 415 of the act (21 U.S.C. 350d) and 21 CFR part 1,
subpart H.
(12) Shipper means the owner or exporter of the article of food who
consigns and ships the article from a foreign country or the person who
sends an article of food by international mail to the United States.
(13) United States means the Customs territory of the United States
(i.e., the 50 states, the District of Columbia, and the Commonwealth of
Puerto Rico), but not the Territories.
(14) You means the person submitting the prior notice, i.e., the
submitter, or the person transmitting prior notice information on
behalf of the submitter, i.e., the transmitter.
Sec. 1.277 What is the scope of this subpart?
(a) This subpart applies to all food for humans and other animals
that is imported or offered for import into the United States for use,
storage, or distribution in the United States, including food for gifts
and trade and quality assurance/quality control samples, food for
transshipment through the United States to another country, food for
future export, and food for use in a U.S. Foreign Trade Zone.
(b) Notwithstanding paragraph (a), this subpart does not apply to:
(1) Food for an individual's personal use when it is carried by or
otherwise accompanies the individual when arriving in the United
States;
(2) Food that was made by an individual in his/her personal
residence and sent by that individual as a personal gift (i.e., for
non-business reasons) to an individual in the United States;
(3) Food that is imported then exported without leaving the port of
arrival until export;
(4) Meat food products that at the time of importation are subject
to the exclusive jurisdiction of the U.S. Department of Agriculture
(USDA) under the Federal Meat Inspection Act (21 U.S.C. 601 et seq.);
(5) Poultry products that at the time of importation are subject to
the exclusive jurisdiction of USDA under the Poultry Products
Inspection Act (21 U.S.C. 451 et seq.); and
(6) Egg products that at the time of importation are subject to the
exclusive jurisdiction of USDA under the Egg Products Inspection Act
(21 U.S.C. 1031 et seq.).
Requirements To Submit Prior Notice of Imported Food
Sec. 1.278 Who is authorized to submit prior notice?
A prior notice for an article of food may be submitted by any
person with knowledge of the required information. This person is the
submitter. The submitter also may use another person to transmit the
required information on his/her behalf. The person who transmits the
information is the transmitter. The submitter and transmitter may be
the same person.
Sec. 1.279 When must prior notice be submitted to FDA?
(a) Except as provided in paragraph (c) of this section, you must
submit the prior notice to FDA and the prior notice submission must be
confirmed by FDA for review as follows:
(1) If the article of food is arriving by land by road, no less
than 2 hours before arriving at the port of arrival;
(2) If the article of food is arriving by land by rail, no less
than 4 hours before arriving at the port of arrival;
(3) If the article of food is arriving by air, no less than 4 hours
before arriving at the port of arrival; or
(4) If the article of food is arriving by water, no less than 8
hours before arriving at the port of arrival.
(b) Except in the case of an article of food imported or offered
for import by international mail, you may not submit prior notice more
than 5 calendar days before the anticipated date of arrival of the food
at the anticipated port of arrival.
(c) Notwithstanding paragraphs (a) and (b) of this section, if the
article of food is arriving by international mail, you must submit the
prior notice before the article of food is sent to the United States.
(d) FDA will notify you that your prior notice has been confirmed
for review with a reply message that contains a Prior Notice (PN)
Confirmation Number. Your prior notice will be considered submitted and
the prior notice time will start when FDA has confirmed your prior
notice for review.
(e) The PN Confirmation Number must accompany any article of food
[[Page 59072]]
arriving by international mail. The PN Confirmation Number must appear
on the Customs Declaration that accompanies the package.
(f) A copy of the confirmation including the PN Confirmation
Number, must accompany any article of food that is subject to this
subpart when it is carried by or otherwise accompanies an individual
when arriving in the United States. The copy of the confirmation must
be provided to CBP or FDA upon arrival.
(g) The PN Confirmation Number must accompany any article of food
for which the prior notice was submitted through the FDA Prior Notice
System Interface (FDA PN System Interface) when the article arrives in
the United States and must be provided to CBP or FDA upon arrival.
Sec. 1.280 How must you submit prior notice?
(a) You must submit the prior notice electronically to FDA. You
must submit all prior notice information in the English language,
except that an individual's name, the name of a company, and the name
of a street may be submitted in a foreign language. All information,
including these items, must be submitted using the Latin (Roman)
alphabet. Unless paragraph (d) of this section applies, you must submit
prior notice through:
(1) The CBP Automated Broker Interface of the Automated Commercial
System (ABI/ACS); or
(2) The FDA PN System Interface at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov. You
must submit prior notice through the FDA PN System Interface for
articles of food imported or offered for import by international mail,
other transaction types that cannot be made through ABI/ACS, and
articles of food that have been refused under section 801(m)(1) of the
act and this subpart.
(b) If a custom broker's or self-filer's system is not working or
if the ABI/ACS interface is not working, prior notice must be submitted
through the FDA PN System Interface.
(c) If FDA determines that FDA PN System Interface is not working,
FDA will issue notification at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov and FDA Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov --see Prior Notice. Once FDA issues this
notification, if you intended to use the FDA PN System Interface to
submit a prior notice, you must submit prior notice information by e-
mail or by fax to FDA. The location for receipt of submission by e-mail
or fax is listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see Prior Notice--PN System
Interface.
(d) If FDA determines that the Operational and Administration
System for Import Support (OASIS) is not working, FDA will issue
notification at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.access.fda.gov, on the FDA Web site at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov, and through messages in ABI/ACS. Once FDA issues
this notification, all prior notices must be submitted to FDA by e-mail
or by fax. The location for receipt of submission by e-mail or fax is
listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see Prior Notice.
(e) Prior notice information will only be accepted at the listed e-
mail or fax locations if FDA determines that the FDA PN System
Interface or OASIS is not working.
Sec. 1.281 What information must be in a prior notice?
(a) General. For each article of food that is imported or offered
for import into the United States, except by international mail, you
must submit the information for the article that is required in this
paragraph.
(1) The name of the individual submitting the prior notice and his/
her business address, and phone number, fax number, and e-mail address,
and the name and address of the submitting firm, if applicable. If a
registration number is provided, city and country may be provided
instead of the full address;
(2) If different from the submitter, the name of the individual and
firm, if applicable, transmitting the prior notice on behalf of the
submitter and his/her business address, and phone number, fax number,
and e-mail address. If a registration number is provided, city and
country may be provided instead of the full address;
(3) The entry type;
(4) The CBP entry identifier (e.g., CBP entry number or in-bond
number), if available;
(5) The identity of the article of food being imported or offered
for import, as follows:
(i) The complete FDA product code;
(ii) The common or usual name or market name;
(iii) The estimated quantity of food that will be shipped,
described from largest container to smallest package size; and
(iv) The lot or code numbers or other identifier of the food if
required by the act or FDA regulations, e.g., low acid canned foods, by
21 CFR 113.60(c); acidified foods, by 21 CFR 114.80(b); and infant
formula, by 21 CFR 106.90;
(6) For an article of food that is no longer in its natural state,
the name and address of the manufacturer and the registration number
assigned to the facility that is associated with the article of food. A
registration number is not required for a facility associated with an
article of food if the article is imported or offered for import for
transshipment, storage, and export, or further manipulation and export.
If the article of food is sent by an individual as a personal gift
(i.e., for nonbusiness reasons) to an individual in the United States,
you may provide the name and address of the firm that appears on the
label under 21 CFR 101.5 instead of the name, address, and registration
number of the manufacturer. If a registration number is provided, city
and country may be provided instead of the full address;
(7) For an article of food that is in its natural state, the name
and growing location address of the grower, if known. If the submitter
does not know the identity of the grower or, if the article has been
consolidated, the identity of any of the growers, you may provide the
name and address of the firm that has consolidated the articles of food
from different growers or different growing locations;
(8) The FDA Country of Production;
(9) The name and address of the shipper and, if the shipper is
required to register under 21 CFR part 1, subpart H, the registration
number assigned to the shipper's facility that is associated with the
article of food. A registration number is not required for a facility
associated with an article of food if the article is imported or
offered for import for transshipment, storage, and export, or further
manipulation and export. If a registration number is provided, city and
country may be provided instead of the full address;
(10) The country from which the article is shipped;
(11) Anticipated arrival information about the article of food
being imported or offered for import, as follows:
(i) The anticipated port of arrival and, if the anticipated port of
arrival has more than one border crossing, the specific anticipated
border crossing where the food will be brought into the United States;
(ii) The anticipated date on which the article of food will arrive
at the anticipated port of arrival; and
(iii) The anticipated time of that arrival;
(12) The name and address of the importer. If a registration number
is provided, city and country may be provided instead of the full
address. The identity of the owner is not required for an article of
food that is imported or offered for import for transshipment through
the United States under a Transportation and Exportation entry;
(13) The name and address of the owner if different from the
importer or ultimate consignee. If a registration
[[Continued on page 59074]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 59074-59077]] Prior Notice of Imported Food Under the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002
[[Continued from page 59073]]
[[Page 59073]]
number is provided, city and country may be provided instead of the
full address. The identity of the importer is not required for an
article of food that is imported or offered for import for
transshipment through the United States under a Transportation and
Exportation entry;
(14) The name and address of the ultimate consignee. If a
registration number is provided, city and country may be provided
instead of the full address. The identity of the ultimate consignee is
not required for an article of food that is imported or offered for
import for transshipment through the United States under a
Transportation and Exportation entry;
(15) The mode of transportation;
(16) The Standard Carrier Abbreviation Code (SCAC) or International
Air Transportation Association (IATA) code of the carrier which is, or
will be, carrying the article of food from the country from which the
article is shipped to the United States, or if codes are not
applicable, then the name and country of the carrier;
(17) Planned shipment information, as applicable:
(i) The Airway Bill number(s) or Bill of Lading number(s). This
information is not required for an article of food when carried by or
otherwise accompanying an individual when entering the United States;
(ii) For food arriving by ocean vessel, the vessel name and voyage
number;
(iii) For food arriving by air carrier, the flight number;
(iv) For food arriving by truck, bus, or rail, the trip number;
(v) For food arriving as containerized cargo by water, air, or
land, the container number(s). This information is not required for an
article of food when carried by or otherwise accompanying an individual
when entering the United States;
(vi) For food arriving by rail, the car number. This information is
not required for an article of food when carried by or otherwise
accompanying an individual;
(vii) For food arriving by privately owned vehicle, the license
plate number and State or province; and
(viii) The 6-digit Harmonized Tariff Schedule (HTS) code.
(b) Articles arriving by international mail. For each article of
food that is imported or offered for import into the United States by
international mail, you must submit the information for the article
that is required in this paragraph.
(1) The name of the individual submitting the prior notice and his/
her business address, and phone number, fax number, and e-mail address,
and the name and address of the submitting firm, if applicable. If a
registration number is provided, city and country may be provided
instead of the full address;
(2) If different from the submitter, the name of the individual and
firm, if applicable, transmitting the prior notice on behalf of the
submitter and his/her business address and phone number, fax number,
and e-mail address. If a registration number is provided, city and
country may be provided instead of the full address;
(3) The entry type (which will be a mail entry);
(4) The identity of the article of food being imported or offered
for import, as follows:
(i) The complete FDA product code;
(ii) The common or usual name or market name;
(iii) The estimated quantity of food that will be shipped,
described from largest container to smallest package size; and
(iv) The lot or code numbers or other identifier of the food if
required by the act or FDA regulations, e.g., low acid canned foods, by
21 CFR 113.60(c); acidified foods, by 21 CFR 114.80(b); and infant
formula, 21 CFR 106.90;
(5) For an article of food that is no longer in its natural state,
the name and address of the manufacturer and the registration number
assigned to the facility that is associated with the article of food. A
registration number is not required for a facility associated with an
article of food if the article is imported or offered for import for
transshipment, storage and export, or further manipulation and export.
If the article of food is sent by an individual as a personal gift
(i.e., for non-business reasons) to an individual in the United States,
you may provide the name and address of the firm that appears on the
label under 21 CFR 101.5 instead of the name, address, and registration
number of the manufacturer. If a registration number is provided, city
and country may be provided instead of the full address;
(6) For an article of food that is in its natural state, the name
and growing location address of the grower, if known. If the submitter
does not know the identity of the grower or, if the article has been
consolidated, the identity of any of the growers, you may provide the
name and address of the firm that has consolidated the articles of food
from different growers or different growing locations;
(7) The FDA Country of Production;
(8) The name and address of the shipper and, if the shipper is
required to register under 21 CFR part 1, subpart H, the registration
number assigned to the shipper's facility that is associated with the
article of food. A registration number is not required for a facility
associated with an article of food if the article is imported or
offered for import for transshipment, storage and export, or further
manipulation and export. If a registration number is provided, city and
country may be provided instead of the full address;
(9) The country from which the article is shipped (i.e., mailed);
(10) The anticipated date of mailing; and
(11) The name and address of the U.S. recipient.
(c) Refused articles. If the article of food has been refused under
section 801(m)(1) of the act and this subpart, you must submit the
information for the article that is required in this paragraph.
However, if the refusal is based on Sec. 1.283(a)(1)(iii) (Untimely
Prior Notice), you do not have to re-submit any information previously
submitted unless it has changed or the article has been exported and
the original prior notice was submitted through ABI/ACS. If the refusal
is based on Sec. 1.283(a)(ii), you should cancel the previous
submission per Sec. 1.282(b) and (c).
(1) The name of the individual submitting the prior notice and his/
her business address, and phone number, fax number, and e-mail address,
and the name and address of the submitting firm, if applicable. If a
registration number is provided, city and country may be provided
instead of the full address;
(2) If different from the submitter, the name of the individual and
firm, if applicable, transmitting the prior notice on behalf of the
submitter and his/her business address, and phone number, fax number,
and e-mail address. If the registration number is provided, city and
country may be provided instead of the full address;
(3) The entry type;
(4) The CBP entry identifier (e.g., CBP entry number or in-bond
number), if available;
(5) The identity of the article of food being imported or offered
for import, as follows:
(i) The complete FDA product code;
(ii) The common or usual name or market name;
(iii) The quantity of food that was shipped, described from largest
container to smallest package size; and
(iv) The lot or code numbers or other identifier of the food if
required by the act or FDA regulations, e.g., low acid canned foods, by
21 CFR 113.60(c); acidified foods, by 21 CFR 114.80(b); and infant
formula, by 21 CFR 106.90;
[[Page 59074]]
(6) For an article of food that is no longer in its natural state,
the name and address of the manufacturer and the registration number
assigned to the facility that is associated with the article of food. A
registration number is not required for a facility associated with an
article of food if the article is imported or offered for import for
transshipment, storage and export, or further manipulation and export.
If the article of food is sent by an individual as a personal gift
(i.e., for non-business reasons) to an individual in the United States,
you may provide the name and address of the firm that appears on the
label under 21 CFR 101.5 instead of the name, address, and registration
number of the manufacturer. If a registration number is provided, city
and country may be provided instead of the full address;
(7) For an article of food that is in its natural state, the name
and growing location address of the grower, if known. If the submitter
does not know the identity of the grower or, if the article has been
consolidated, any of the growers, you may provide the name and address
of the firm that has consolidated the articles of food from different
growers or different growing locations;
(8) The FDA Country of Production;
(9) The name and address of the shipper and, if the shipper is
required to register under 21 CFR part 1, subpart H, the registration
number assigned to the shipper's facility that is associated with the
article of food. A registration number is not required for a facility
associated with an article of food if the article is imported or
offered for import for transshipment, storage and export, or further
manipulation and export. If a registration number is provided, city and
country may be provided instead of the full address;
(10) The country from which the article is shipped;
(11) The port of arrival;
(12) The name and address of the importer. If a registration number
is provided, city and country may be provided instead of the full
address. The identity of the importer is not required for an article of
food that is imported or offered for import for transshipment through
the United States under a Transportation and Exportation entry;
(13) The name and address of the owner, if different from the owner
or ultimate consignee. If a registration number is provided, city and
country may be provided instead of the full address. The identity of
the owner is not required for an article of food that is imported or
offered for import for transshipment through the United States under a
Transportation and Exportation entry;
(14) The name and address of the ultimate consignee. If a
registration number is provided, city and country may be provided
instead of the full address. The identity of the ultimate consignee is
not required for an article of food that is imported or offered for
import for transshipment through the United States under a
Transportation and Exportation entry;
(15) The mode of transportation;
(16) The Standard Carrier Abbreviation Code (SCAC) or International
Air Transportation Association (IATA) code of the carrier which carried
the article of food from the country from which the article is shipped
to the United States, or if codes are not applicable, then the name and
country of the carrier;
(17) Shipment information, as applicable:
(i) The Airway Bill number(s) or Bill of Lading number(s); however,
this information is not required for an article of food when carried by
or otherwise accompanying an individual when entering the United
States;
(ii) For food that arrived by ocean vessel, the vessel name and
voyage number;
(iii) For food that arrived by air carrier, the flight number;
(iv) For food that arrived by truck, bus, or rail, the trip number;
(v) For food that arrived as containerized cargo by water, air, or
land, the container number(s); however, this information is not
required for an article of food when carried by or otherwise
accompanying an individual when entering the United States;
(vi) For food that arrived by rail, the car number; however, this
information is not required for an article of food when carried by or
otherwise accompanying an individual;
(vii) For food that arrived by privately owned vehicle, the license
plate number and State or province;
(viii) The 6-digit HTS code; and
(18) The location and address where the article of refused food
will be or is being held, the date the article has arrived or will
arrive at that location, and identification of a contact at that
location.
Sec. 1.282 What must you do if information changes after you have
received confirmation of a prior notice from FDA?
(a)(1) If any of the information required in Sec. 1.281(a) except
the information required in:
(i) Sec. 1.281(a)(5)(iii) (quantity),
(ii) Sec. 1.281(a)(11) (anticipated arrival information), or
(iii) Sec. 1.281(a)(17) (planned shipment information) changes
after you receive notice that FDA has confirmed your prior notice
submission for review, you must resubmit prior notice in accordance
with this subpart unless the article of food will not be offered for
import or imported into the United States.
(2) If any of the information required in Sec. 1.281(b), except
the information required in Sec. 1.281(b)(10) (the anticipated date of
mailing), changes after you receive notice that FDA has confirmed your
prior notice submission for review, you must resubmit prior notice in
accordance with this subpart, unless the article of food will not be
offered for import or imported into the United States.
(b) If you submitted the prior notice via the FDA PN System
Interface, you should cancel the prior notice via the FDA PN System
Interface.
(c) If you submitted the prior notice via ABI/ACS, you should
cancel the prior notice via ACS by requesting that CBP delete the
entry.
Consequences
Sec. 1.283 What happens to food that is imported or offered for
import without adequate prior notice?
(a) For each article of food that is imported or offered for import
into the United States, except for food arriving by international mail
or food carried by or otherwise accompanying an individual, the
consequences are:
(1) Inadequate prior notice--(i) No prior notice. If an article of
food arrives at the port of arrival and no prior notice has been
submitted and confirmed by FDA for review, the food is subject to
refusal of admission under section 801(m)(1) of the act (21 U.S.C.
381(m)(1)). If an article of food is refused for lack of prior notice,
unless CBP concurrence is obtained for export and the article is
immediately exported from the port of arrival under CBP supervision, it
must be held within the port of entry for the article unless directed
by CBP or FDA.
(ii) Inaccurate prior notice. If prior notice has been submitted
and confirmed by FDA for review, but upon review of the notice or
examination of the article of food, the notice is determined to be
inaccurate, the food is subject to refusal of admission under section
801(m)(1) of the act (21 U.S.C. 381(m)(1)). If the article of food is
refused due to inaccurate prior notice, unless CBP concurrence is
obtained for export and the article is immediately exported from the
port of arrival under CBP supervision, it must be held within
[[Page 59075]]
the port entry for the article unless directed by CBP or FDA.
(iii) Untimely prior notice. If prior notice has been submitted and
confirmed by FDA for review, but the full time that applies under Sec.
1.279 of this subpart for prior notice has not elapsed when the article
of food arrives, the food is subject to refusal of admission under
section 801(m)(1) of the act (21 U.S.C. 381(m)(1)), unless FDA has
already reviewed the prior notice, determined its response to the prior
notice, and advised CBP of that response. If the article of food is
refused due to untimely prior notice, unless CBP concurrence is
obtained for export and the article is immediately exported from the
port of arrival under CBP supervision, it must be held within the port
of entry for the article unless directed by CBP or FDA.
(2) Status and movement of refused food. (i) An article of food
that has been refused under section 801(m)(1) of the act and paragraph
(a) of this section shall be considered general order merchandise as
described in section 490 of the Tariff Act of 1930, as amended, 19
U.S.C. 1490.
(ii) Refused food must be moved under appropriate custodial bond.
FDA must be notified of the location where the food has been or will be
moved, within 24 hours of refusal. The refused food shall not be
entered and shall not be delivered to any importer, owner, or ultimate
consignee. The food must be taken directly to the designated location.
(3) Segregation of refused foods. If an article of food that is
refused is part of a shipment that contains articles of food that have
not been placed underhold, the refused article of food may be
segregated from the rest of the shipment. This segregation must take
place within the port, of arrival or where the article is held, if
different. FDA or CBP may supervise segregation. If FDA or CBP
determines that supervision is necessary, segregation must not take
place without supervision.
(4) Costs. Neither FDA nor CBP are liable for transportation,
storage, or other expenses resulting from refusal.
(5) Export after refusal. An article of food that has been refused
under Sec. 1.283(a) may be exported with CBP concurrence and under CBP
supervision unless it is seized or administratively detained by FDA or
CBP under other authority. If an article of food that has been refused
admission under Sec. 1.283(a) is exported, the prior notice should be
cancelled within 5 business days of exportation.
(6) No post-refusal submission or request for review. If an article
of food is refused under section 801(m)(1) and no prior notice is
submitted or resubmitted, no request for FDA review is submitted in a
timely fashion, or export has not occurred in accordance with paragraph
(a)(7) of this section, the article of food shall be dealt with as set
forth in CBP regulations relating to general order merchandise (19 CFR
part 127), except that the article may only be sold for export or
destroyed as agreed to by CBP and FDA.
(b) Food carried by or otherwise accompanying an individual. If
food carried by or otherwise accompanying an individual arriving in the
United States is not for personal use and does not have adequate prior
notice or the individual cannot provide FDA or CBP with a copy of the
PN confirmation, the food is subject to refusal of admission under
section 801(m)(1) of the act. If before leaving the port, the
individual arrange to have the food held at the port or exported, the
article of food shall be destroyed.
(c) Post-Refusal Prior Notice Submissions.
(1) If an article of food is refused under Sec. 1.283(a)(1)(i) (no
prior notice) and the food is not exported, prior notice must be
submitted in accordance with Sec. Sec. 1.280 and 1.281(c) of this
subpart.
(2) If an article of food is refused under Sec. 1.283(a)(1)(ii)
(inaccurate prior notice) and the food is not exported, you should
cancel the prior notice in accordance with Sec. 1.282 and must
resubmit prior notice in accordance with Sec. Sec. 1.280 and 1.281(c).
(3) Once the prior notice has been submitted or resubmitted and
confirmed by FDA for review, FDA will endeavor to review and respond to
the prior notice submission within the timeframes set out in Sec.
1.279.
(d) FDA Review After Refusal.
(1) If an article of food has been refused admission under section
801(m)(1) of the act, a request may be submitted asking FDA to review
whether the article is subject to the requirements of this subpart
under Sec. 1.276(b)(4) or Sec. 1.277, or whether the information
submitted in a prior notice is accurate. A request for review may not
be used to submit prior notice or to resubmit an inaccurate prior
notice.
(2) A request may be submitted only by the submitter, importer,
owner, or ultimate consignee. A request must identify which one the
requester is.
(3) A request must be submitted in writing to FDA and delivered by
mail, express courier, fax, or e-mail. The location for receipt of a
request is listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see Prior Notice. A request
must include all factual and legal information necessary for FDA to
conduct its review. Only one request for review may be submitted for
each refused article.
(4) The request must be submitted within 5 calendar days of the
refusal. FDA will review and respond within 5 calendar days of
receiving the request.
(5) If FDA determines that the article is not subject to the
requirements of this subpart under Sec. 1.276(b)(5) or Sec. 1.277 or
that the prior notice submission is accurate, it will notify the
requester, the transmitter, and CBP that the food is no longer subject
to refusal under section 801(m)(1) of the act.
(e) International Mail. If an article of food arrives by
international mail with inadequate prior notice or the PN confirmation
number is not affixed as required, the parcel will be held by CBP for
72 hours for FDA inspection and disposition. If FDA refuses the article
under section 801(m) of the act and there is a return address, the
parcel may be returned to sender stamped ``No Prior Notice--FDA
Refused.'' If the article is refused and there is no return address or
FDA determines that the article of food in the parcel appears to
present a hazard, FDA may dispose of or destroy the parcel at its
expense. If FDA does not respond within 72 hours of the CBP hold, CBP
may return the parcel to the sender or, if there is no return address,
destroy the parcel, at FDA expense.
(f) Prohibitions on delivery and transfer.
(1) Notwithstanding section 801(b) of the act, an article of food
refused under section 801(m)(1) of the act may not be delivered to the
importer, owner, or ultimate consignee until prior notice is submitted
to FDA in accordance with this subpart, FDA has examined the prior
notice, FDA has determined that the prior notice is adequate, and FDA
has notified CBP and the transmitter that the article of food is no
longer refused admission under section 801(m)(1).
(2) During the time an article of food that has been refused under
section 801(m)(1) of the act is held, the article may not be
transferred by any person from the port or the secure facility until
prior notice is submitted to FDA in accordance with this subpart, FDA
has examined the prior notice, FDA has determined that the prior notice
is adequate, and FDA has notified CBP and the transmitter that the
article of food no longer is refused admission under section 801(m)(1).
After this notification by FDA to CBP and transmitter, entry may be
made in accordance with law and regulation.
(g) Relationship to other admissibility decisions. A determination
that an
[[Page 59076]]
article of food is no longer refused under section 801(m)(1) of the act
is different than, and may come before, determinations of admissibility
under other provisions of the act or other U.S. laws. A determination
that an article of food is no longer refused under section 801(m)(1)
does not mean that it will be granted admission under other provisions
of the act or other U.S. laws.
Sec. 1.284 What are the other consequences of failing to submit
adequate prior notice or otherwise failing to comply with this subpart?
(a) The importing or offering for import into the United States of
an article of food in violation of the requirements of section 801(m),
including the requirements of this subpart, is a prohibited act under
section 301(ee) of the act (21 U.S.C. 331(ee)).
(b) Section 301 of the act (21 U.S.C. 331) prohibits the doing of
certain acts or causing such acts to be done.
(1) Under section 302 of the act (21 U.S.C. 332), the United States
can bring a civil action in federal court to enjoin persons who commit
a prohibited act.
(2) Under section 303 of the act (21 U.S.C. 333), the United States
can bring a criminal action in Federal court to prosecute persons who
are responsible for the commission of a prohibited act.
(c) Under section 306 of the act (21 U.S.C. 335a), FDA can seek
debarment of any person who has been convicted of a felony relating to
importation of food into the United States or any person who has
engaged in a pattern of importing or offering adulterated food that
presents a threat of serious adverse health consequences or death to
humans or animals.
Sec. 1.285 What happens to food that is imported or offered for
import from unregistered facilities that are required to register under
21 CFR part 1, subpart H?
(a) If an article of food from a foreign manufacturer that is not
registered as required under section 415 of the act (21 U.S.C. 350d)
and subpart H is imported or offered for import into the United States,
the food is subject to refusal of admission under section 801(m)(1) of
the act and Sec. 1.283 for failure to provide adequate prior notice.
The failure to provide the correct registration number of the foreign
manufacturer, if registration is required under section 415 of the act
and 21 CFR part 1, subpart H, renders the identity of that facility
incomplete for purposes of prior notice.
(b) Unless CBP concurrence is obtained for export and the article
is immediately exported from the port of arrival, if an article of food
is imported or offered for import from a foreign facility that is not
registered as required under section 415 of the act and is placed under
hold, it must be held within the port of entry for the article unless
directed by CBP or FDA.
(c) Status and movement of held food. (1) An article of food that
has been placed under hold under section 801(l) of the act shall be
considered general order merchandise as described in section 490 of the
Tariff Act of 1930, as amended (19 U.S.C. 1490).
(2) Food under hold under section 801(l) must be moved under
appropriate custodial bond. FDA must be notified of the location where
the food has been or will be moved, within 24 hours of the hold. The
food subject to hold shall not be entered and shall not be delivered to
any importer, owner, or ultimate consignee. The food must be taken
directly to the designated facility.
(d) Segregation of refused foods. If an article of food that has
been placed under hold under section 801(l) is part of a shipment that
contains articles that have not been placed under hold of the act, the
food under hold may be segregated from the rest of the shipment. This
segregation must take place within the port of arrival where the
article is held, if different. FDA or CBP may supervise segregation. If
FDA or CBP determine that supervision is necessary, segregation must
not take place without supervision.
(e) Costs. Neither FDA nor CBP will be liable for transportation,
storage, or other expenses resulting from any hold.
(f) Export after refusal. An article of food that has been placed
under hold under section 801(l) of the act may be exported with CBP
concurrence and under CBP supervision unless it is seized or
administratively detained by FDA or CBP under other authority.
(g) No Registration or Request for Review. If an article of food is
placed under hold under section 801(l) of the act and no registration
or request for FDA review is submitted in a timely fashion or export
has not occurred in accordance with subsection (g), the food shall be
dealt with as set forth in CBP regulations relating to general order
merchandise, except that the article may only be sold for export or
destroyed as agreed to by CBP and FDA.
(h) Food carried by or otherwise accompanying an individual. If an
article of food carried by or otherwise accompanying an individual
arriving in the United States is placed under hold under section 801(l)
of the act because it is from a foreign facility that is not registered
as required under section 415 of the act, 21 U.S.C. 350d, and subpart
H, the individual may arrange to have the food held at the port or
exported. If such arrangements cannot be made, the article of food may
be destroyed.
(i) Post-refusal and post-hold submissions. (1) Post-refusal. To
resolve the refusal if an article of food is refused under Sec.
1.283(a) because the facility is not registered, the facility must be
registered and a registration number has been obtained, you should
cancel the prior notice and must resubmit the prior notice in
accordance with Sec. 1.283(c).
(2) Post-hold. To resolve a hold, if an article of food is held
under Sec. 1.285(b) because it is from a foreign facility that is not
registered, the facility must be registered and a registration number
must be obtained.
(i) FDA must be notified of the applicable registration number in
writing. The notification must provide the name and contact information
for the person submitting the information. The notification may be
delivered to FDA by mail, express courier, fax, or e-mail. The location
for receipt of a notification of registration number associated with an
article of food under hold is listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see Food
Facility Registration. The notification should include the applicable
CBP identifier.
(ii) If FDA determines that the article is no longer subject to
hold, it will notify the person who provided the registration
information and CBP that the food is no longer subject to hold under
section 801(l) of the act.
(j) FDA review after hold. (1) If an article of food has been
placed under hold under section 801(l), a request may be submitted
asking FDA to review whether the facility associated with the article
is subject to the requirements of section 415 of the act. A request for
review may not be submitted to obtain a registration number.
(2) A request may be submitted only by the prior notice submitter,
importer, owner, or ultimate consignee of the article. A request must
identify which one the requestor is.
(3) A request must be submitted in writing to FDA and delivered by
mail, express courier, fax or e-mail. The location for receipt of a
request is listed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov_see Prior Notice. A request
must include all factual and legal information necessary for FDA to
conduct its review. Only one request for review may be submitted for
each article under hold.
(4) The request must be submitted within 5 calendar days of the
hold. FDA will review and respond within 5 calendar days of receiving
the request.
(5) If FDA determines that the article is not from a facility
subject to the requirements of section 415, it will
[[Page 59077]]
notify the requestor and CBP that the food is no longer subject to hold
under section 801(l) of the act.
(k) International mail. If an article of food is that arrives by
international mail is from a foreign facility that is not registered as
required under section 415 of the act (21 U.S.C. 350d) and subpart H,
the parcel will be held by CBP for 72 hours for FDA inspection and
disposition. If the article is held under section 801(1) of the act and
there is a return address, the parcel may be returned to sender stamped
``No Registration--No Admission Permitted.'' If the article is under
hold and there is no return address or FDA determines that the article
of food is in the parcel appears to present a hazard, FDA may dispose
of or destroy the parcel at its expense. If FDA does not respond within
72 hours of the CBP hold, CBP may return the parcel to the sender
stamped ``No Registration--No Admission Permitted'' or, if there is no
return address, destroy the parcel, at FDA expense.
(l) Prohibitions on delivery and transfer. (1) Notwithstanding
section 801(b) of the act (21 U.S.C. 381(b)), an article of food that
has been refused under section 801(m)(1) of the act may not be
delivered to the importer, owner, or ultimate consignee until prior
notice is submitted to FDA in accordance with this subpart, FDA has
examined the prior notice, FDA has determined that the prior notice is
adequate, and FDA has notified CBP and the transmitter that the article
of food is no longer refused admission under section 801(m)(1) of the
act.
(2) During the time an article of food that has been refused under
section 801(m)(1) of the act is held, the article may not be
transferred by any person from the port or the secure facility location
until prior notice is submitted to FDA in accordance with this subpart,
FDA has examined the prior notice, FDA has determined that the prior
notice is adequate, and FDA has notified CBP and the transmitter that
the article of food is no longer refused admission under section
801(m)(1) of the act. After this notification by FDA to CBP and
transmitter, entry may be made in accordance with law and regulation.
(m) Relationship to other admissibility provisions. A determination
that an article of food is no longer subject to hold under section
801(l) of the act is different than, and may come before,
determinations of admissibility under other provisions of the act or
other U.S. laws. A determination that an article of food is no longer
under hold under section 801(l) does not mean that it will be granted
admission under other provisions of the act or other U.S. laws.
Dated: October 2, 2003.
Tommy G. Thompson,
Secretary of Health and Human Services.
Dated: October 8, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-25877 Filed 10-9-03; 8:45 am]
BILLING CODE 4160-01-P