Food Haulers: CBP Delaying BTA Enforcement Phase Three

by Ingrid Phaneuf

TORONTO, Ont. – The recently-announced postponement of phase three enforcement of prior notice for U.S.-bound food shipments, originally due to kick in May 19, shows U.S. bureaucrats are rushing into security measures prematurely, says Canadian Trucking Alliance CEO David Bradley.

“The CBP’s (U.S. Customs) latest announcement regarding the phase three enforcement of the FDA (Food and Drug Administration) prenotification rules underscores my long-standing concern that the bureaucrats are under the gun to rush implementation of various security measures – before they have all their systems up and running properly and everything is in order,” said Bradley after the delay was announced.

Required computer programming changes were not installed in time to meet the May 19 deadline, explained U.S. Customs officials. Once installed, the changes will make the failure to submit all mandatory prior notice (PN) data elements a cause for rejection by the Automated Broker Interface (ABI).

Customs officials said in May they anticipated making the software changes a few weeks later than originally scheduled. They said they wanted to use the extra time to better identify and quantify the percentages of shipments that have been receiving warnings and note their possible effect on port operations.

“Better they hold off on full enforcement than risk choking the border,” Bradley commented.

But the enforcement delay doesn’t automatically mean the delay of the final stage of Bioterrorism Act (BTA) enforcement August 12, Customs officials warned. Prior notice filers should assume that phase four enforcement will begin on time on that date.

(Filers should also be aware that prior notice submission periods before the shipment arrival should take into account any possible time needed to deal with corrections required, by either the ABI or FDA systems. Simply filing prior notice within the minimum time window will not allow time to review, correct and submit corrections sufficiently in advance of arrival to avoid a refusal at Customs, officials said.)

Still, the delay gives rise to more concerns for Canada’s transborder trucking industry, said David Bradley.

“It leaves me more than concerned over other measures, like US-VISIT and the driver credentialing requirements (TWIC) under the Patriot Act,” he said.

FDA food detention rule also a concern

Bradley also raised concerns over exactly how carriers will be affected by the Food and Drug Administration’s newly-finalized rule on administrative detention of suspect food.

The FDA announced May 27 the final rule establishing procedures for the administrative detention of food. (The rule was published in the Federal Register June 4, to see the full text of it, click on the Border Legislation button at

The rule applies to food for which the agency has what officials call “credible evidence or information that it presents a threat of serious adverse health consequences or death to humans or animals.” Under the final rule, FDA may detain an article of food on the strength of such evidence or information resulting from an inspection, examination or investigation.

The definition of what constitutes credible evidence or a credible source for evidence is what worries Bradley.

“The FDA’s new rule does add another layer of inspection but it’s pretty hard to argue with since the detentions are to be imposed when there is credible evidence or information pointing to a threat of serious adverse health consequences or death to humans or animals. It will come down to how good the FDA’s information and risk assessment capabilities are. Time will tell. It has to be more than some inspector simply thinks there is a problem,” said Bradley.

The rule requires a detention order to be approved by the FDA District Director of the district (or border crossing) where the detained article of food is located, or by a higher official.

A copy of the detention order would be given to the owner, operator and/or agent in charge of the place where the article of food is located, and to the owner of the food provided the owner’s identity can be determined readily. If FDA issues a detention order for an article of food located in a vehicle or other carrier, the agency also must provide a copy of the detention order to the shipper of record and the owner and operator of the vehicle or other carrier provided the owner’s identity can be determined readily.

The final rule requires detained articles of food to be held in secure locations, as determined by FDA. The food may not be transferred from the place where it has been ordered detained, or from the place where the detained article has been moved for safe keeping without FDA approval. A detention may not exceed 30 days, and violation of a detention order is prohibited.

“These regulations lend an additional layer of protection to our defenses against bioterrorism,” said Secretary of Health and Human Services Tommy G. Thompson. “The rule strengthens the security of our food supply by enabling us to act more quickly and effectively to prevent potentially contaminated food from reaching consumers.”

The final rule also clarifies the agency’s administrative detention procedures and the process for appealing the detention order.

“Identifying and removing contaminated food from the food supply is an essential part of responding to terrorist acts,” said Dr. Lester M. Crawford, Acting FDA Commissioner.

“This rule describes how the FDA can hold food in place while it initiates legal action in court to seize it and permanently remove it from commerce. Alternately, our experts can determine that the food is safe, and the detention order may be terminated. Either way, consumers are protected.”

The new rule implements one of four key provisions of the Bioterrorism Act designed to ensure the safety and security of food in the U.S. The new rule, as well as previous regulations affecting the transborder trucking industry and issued by the FDA can be viewed at by clicking on the Border Legislation icon.

FDA also plans to issue a fourth final rule in the near future. This rule will cover the establishment and maintenance of records to allow for the identification of the immediate previous sources and immediate subsequent recipients of food to help FDA track food implicated in future emergencies.”

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