NORTHERN BORDER CUSTOMS BROKERS ASSOCIATION, INC.

***[PRESIDENT]{.underline} [TREASURER]{.underline}
[SECRETARY]{.underline}***

**Leman G. (Chip) Bown, Jr. Mary Ann Comstock Mary Anne Webb**

**FedEx Trade Networks W.Y. Moberly, Inc. W.F. Whelan Company**

**128 Dearborn Street P.O. Box 164 6850 Middlebelt Road**

**Buffalo, NY 14207 Sweetgrass, MT 59484 Romulus, MI 48174**

**Tel: 716-871-3240 Tel: 406-335-2211 Tel: 734-721-6410**

**Fax: 716-871-3255 Fax: 406-335-2630 Fax: 734-721-2835**

**E-Mail: lgbownjr@fedex.com E-Mail: WYMobrly@northerntel.net E-Mail:
mawebb@wfwhelan.com**

July 8, 2003

Dockets Management Branch (HFA-305)

Food and Drug Administration

5630 Fishers Lane

Room 1061

Rockville, MD 20852

> **[via e-mail: http://www.oc.fda.gov]{.underline}**

RE: Comments on Proposed Notice of Rulemaking, Docket No. 02N-0277

Dear Sir or Madam:

The Northern Border Customs Brokers Association (NBCBA) wishes to be on
record as supporting the efforts of our Congress and the U.S. Food and
Drug Administration (FDA) to protect the food supply of the United
States. We appreciate the importance of FDA's responsibility for
protecting the U.S. population from imports of food that may be
adulterated and /or pose other health risks.

We offer the following comments in response to the Notice of Proposed
Rulemaking (NPRM) entitled "Establishment and Maintenance of Records
Under the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002" (Docket 02N-0277), published in the Federal
Register on May 9, 2003:

**[1.328 Definition of Transporter or Non-Transporter and the role of
the Customs Broker]{.underline}**

In the NPRM, the non-transporter is defined as "a person who owns food
or who holds, processes, packs, imports, receives, or distributes food
for purposes other than transportation".

The transporter is defined as "a person who has possession, custody, or
control of an article of food for the sole purpose of transporting the
food."

Clearly, FDA's intent is to group parties in the food product supply
chain into two categories for recordkeeping purposes and to establish a
documented chain of custody transfers. However, this categorization does
not cleanly segregate some parties, such as customs brokers, into either
of the two classifications.

In attempting to assign these classifications to parties in the supply
chain for a shipment of food imported from Canada, we came to the
conclusion that the customs broker does not fit into either
classification.

A customs broker can be designated to file entry on behalf of the
importer. This filing requires electronic submission of information to
both the Bureau of Customs and Border Protection (CBP) and FDA. When
acting in this capacity, a customs broker assumes no physical control or
ownership of the imported product, and therefore neither classification,
by definition, applies. Evidence of this inability to classify is
demonstrated in the following example:

For a shipment of food products exported from Canada, the importing
carrier (transporter) is required to record "*the immediate previous
source or person from whom a transporter received an article of food."*
This would most likely be the Canadian shipper. Subsequently, when the
transporter is required to document "*the immediate subsequent
recipient*," they would record the party to whom the shipment was
delivered. In neither case would the customs broker be one of these
parties.

The same would hold true for the non-transporters in this sample
transaction. The Canadian shipper, (non-transporter) would designate the
carrier as transporter. The shipper also would document their customer
as the non-transporter immediate subsequent recipient. The shipper would
not identify the customs broker as either transporter or
non-transporter.

If acting as customs broker and freight forwarder, the customs broker
may file the entry information and/ or contract a carrier to move the
shipment. In this instance, the customs broker would then be designated
as transporter, as they mirror the role of the carrier in that their
activities aid in the movement and transportation of the goods. In this
case we recommend that the customs broker be classified as a transporter
for the purposes of this rule.

**[1.361 Record Availability Requirements]{.underline}**

Under proposed 1.361, records must be made available within 4 hours of a
request if the request is made Monday through Friday between 8 AM and 6
PM, and within 8 hours at other times.

In most ports of entry, the hours of operation of the trade community
are established to mirror the hours of the commercial operations of the
CBP. If requesting documentation outside of those hours of operation,
FDA could encounter difficulty in contacting the appropriate parties
from whom to request records. In addition, customs brokers typically
have many types of offices along the border. Some of these offices are
merely release offices with minimal administrative staff and record
retention, similar to FDA's district organizational structure. When
dealing with these offices, it would be better if FDA requests were
directed to a regional office.

We therefore recommend that the FDA establish a clear-cut and definitive
plan for communicating the requests for records and that the plan be
specific to offices with in a FDA district. The plan must allow for the
parties involved to receive the request in such a manner that would
allow for the production of the records to be in accordance with the
time frame in the final rule.

The NBCBA appreciates the opportunity to comment on the proposed NPRM.

Yours truly,

Leman G. Bown, Jr.

President

Deborah A. Benish

Chair -- FDA Committee