CBP Issues FAQ on Prior Notice of Imported Food and the Registration of Food Facilities

Although this FAQ is entitled: Frequently Asked Questions & Answers Regarding CBP Procedures under the BTA, many of the FAQs cover BTA provisions and prior CBP and Food and Drug Administration (FDA) guidance and policy documents.

Highlights of these FAQs are as follows:

Merchandise from Unregistered Facilities Will Be Refused Admission in Phase 5, Beginning November 1

Regarding manufacturers that refuse to register with the Food and Drug Administration (FDA), FAQ 9 states that starting in Phase 5, on November 1, 2004, BTA covered merchandise sent to the U.S. from an unregistered, and non-exempt, facility will be refused admission.

Enforcement During Phases 4 and 5

FAQ 18 states that new interim Phase 4 began on August 13, 2004 and will end on November 1, 2004. During Phase 4, the trade community will be required to comply with all aspects of the PN requirements; however, facility registration and the use of the consolidated consignee in lieu of individual consignee information for express consignment operations, although required, will not be enforced until November 1, 2004.

Full Enforcement of the BTA, to include those items excluded under Phase 4 will commence in Phase 5 on November 1, 2004.

BTA-Related Penalties

According to FAQ 22, CBP (on behalf of the FDA), has started the process for issuing civil monetary penalties to entities that have failed to file PN as required.

CBP Actions for Merchandise Misdescribed in Order to Avoid BTA Requirements

FAQ 23 states that when CBP finds this sort of violation, all of the merchandise involved may be seized and subject to forfeiture. The violators may also face significant penalty or liquidated damage claims, even criminal prosecution. Upon conviction, the FDA may disbar someone from ever importing food items into the U..S.

FAQ 23 also states that CBP may also apply significant civil monetary penalties to anyone who had knowledge, assisted, or aided in the unlawful importation of these violative goods.

Quota Status of Merchandise if PN Not Satisfied

According to FAQ 24, release of merchandise cannot occur, and entry and/or entry/summary cannot be properly filed, until PN is satisfied.

The fact that the merchandise might be subject to quota must be dealt with after PN is satisfied. However, CBP will allow some very specific HTS number changes to be made in the case of tariff rate quota merchandise, even after PN has been satisfied.

Movement of Offending Shipments Within Ports on CF 6043

According to FAQ 39, a CF 6043 can be used for moving offending shipments to a secure facility within port limits. A CF 7512 would be needed for such movements outside the port limits, but in no case can merchandise lacking adequate PN be moved to an importer's, owner's, or consignee's premises.

(For more detailed information in most cases, see ITT's Online Archives or 12/17/03 news, 03121705 for BP summary of Version 2 of CBP's Interim Processing Instructions for Imported Food Subject to the BTA; ITT's Online Archives or 08/13/04 news, 04081305 for BP summary of new version of FDA Compliance Policy Guide stating that Phase 4 of Enforcement began August 13, 2004 with certain delays, leniencies; ITT's 08/10/04 news, 04081012 for BP summary of FDA's 4^th Version of its Q&A on the Registration of Food Facilities; and ITT's Online Archives or 06/22/04 news, 04062210 for BP summary of CBP's Procedures for BTA Enforced Compliance.)

CBP's FAQ (undated), available athttp://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/bioterrorism/bioterrorism_faq.ctt/faq_bta0804.doc