NCBFAA Says Current FDA Sanitary Transportation Proposal Would Cover Customs Brokers
The Food and Drug Administration’s proposed rule on sanitary transportation could impose responsibilities on entities that lack the knowledge of food safety to successfully perform them, said the National Customs Brokers & Forwarders Association of America in comments to the agency dated May 22. The proposal's definition of "shipper" is so broad that it could cover customs brokers in some circumstances, and could include multiple supply chain participants for the same shipment, said NCBFAA
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FDA’s February 2014 proposed rule on sanitary transportation of food under the Food Safety Modernization (FSMA) would apply to shippers, receivers, and carriers that transport human or animal food by truck or rail, including parties engaged in the international shipment of food in some circumstances (see 14020301). For example, shippers would have to specify sanitary requirements, inspect and verify the conveyance, provide access to hand washing facilities, and safely load food, said the NCBFAA. The proposed rule would define the shipper as “the person who initiates a shipment of food by motor or rail vehicle.” That could be the foreign supplier or distributor, or the U.S. importer if acting as ultimate consignee, it said.
The proposed definition could also include other entities, including customs brokers, that are in less of a position to know the transported food, said the NCBFAA. For example, if a broker issues a delivery order on behalf of the importer to have a truck pick up the container at the pier or an airport for transportation to the final destination or intermediate distribution center, the broker could be covered under FDA’s current proposal. The problem is that the customs broker does not have the knowledge to identify sanitary transportation requirements or cleaning procedures, and is nowhere near the container in order to inspect or load it. “For this rule to be effective, the definition of shipper must describe a party in the supply chain who has the knowledge, authority, or physical presence to perform these responsibilities,” said the NCBFAA.
Under FDA’s proposed rule on the Foreign Supplier Verification Program, the person responsible for verifying compliance is the person that “has a direct financial interest in the food and is most likely to have knowledge and control over the product’s supply chain.” Similarly, FDA said during a recent public meeting that its goal is for the shipper to be the person in a position to know what the sanitary conditions for transportation are,” said the NCBFAA. But the agency’s remarks during the meeting are at odds with what it proposed. Instead, any final regulations should take an approach similar to the FSVP rule and define the shipper as the person with a direct financial interest in the food product.