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HHS/FDA RIN: 0910-AC38 Publication ID: Spring 2003 
Title: Administrative Detention of Food for Human or Animal Consumption Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 
Abstract: This rulemaking is one of a number of actions being taken to improve FDA's ability to respond to threats of bioterrorism. Section 303 of the Bioterrorism Act authorizes the Secretary, through FDA, to order the detention of food if an officer or qualified employee of FDA has credible evidence or information indicating an article of food presents a threat of serious adverse health consequences or death to humans or animals. The Act requires the Secretary, through FDA, to issue final regulations to expedite certain enforcement actions (i.e., seizures and injunctions) against perishable foods. FDA intends to implement section 303 of the Act by proposing a regulation to provide for: 1) a detention procedure; 2) expedited procedures for enforcement actions with respect to perishable foods; and 3) an appeals procedure for detained goods. 
Agency: Department of Health and Human Services(HHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Undetermined  Unfunded Mandates: Undetermined 
CFR Citation: 21 CFR 1 
Legal Authority: PL 107-188, sec 303 
Legal Deadline:  None

Statement of Need: The events of September 11, 2001 highlighted the need to enhance the security of the U.S. food supply. Congress responded by passing the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, which was signed into law on June 12, 2002. The proposed regulation would implement section 303 of the Bioterrorism Act.

Summary of the Legal Basis: The Bioterrorism Act, section 303, amended the Federal Food, Drug, and Cosmetic Act (FFDCA) by adding section 304(h), which authorizes the Secretary to order the detention of domestic and imported food and specifies an appeals process that includes an opportunity for an informal hearing. Section 303 of the Bioterrorism Act also amends section 301 of the FFDCA by making it a prohibited act to transfer an article of food in violation of a detention order or to remove or alter any required mark or label identifying the article as detained.

Alternatives: FDA's decision to promulgate a regulation is based primarily on clear statutory directive to establish regulations, and also on need. The Bioterrorism Act, section 303, clearly states that the Secretary must provide by regulation for procedures for instituting enforcement actions with respect to perishable foods on an expedited basis. Section 303 of the Bioterrorism Act also specifies an appeals process that requires the Secretary, after providing for an informal hearing, to confirm or terminate a detention order within five days of an appeal. Section 201(x) of the FFDCA defines "informal hearing" and describes the requirements necessary for informal hearings. 21 CFR part 16 outlines FDA's informal hearing procedures in greater detail. Part 16 allows minimum timeframes to request and hold an informal hearing, but provides no requirements or limitations on the length of the informal hearing. FDA is proposing a rule tailored to the administrative detention provisions in the Bioterrorism Act which necessitates some modifications to the requirements in part 16. If FDA were to include the minor modifications in a guidance document, FDA would not be able to enforce the new provisions because guidance documents are not binding (21 CFR 10.115(d)). If FDA chose simply to follow part 16, we would run the risk of not providing the presiding officer sufficient time to consider and weigh the evidence for the informal hearing within the statutory timeframes required by the Bioterrorism Act.

Anticipated Costs and Benefits: Administrative detention would generate costs because administrative detention actions differ from other enforcement actions with respect to the following: 1) cost of transporting and storing food, if necessary; 2) loss of product value over the detention period, if we later find the food is not violative; and 3) cost of participating in appeals hearings and other enforcement activity. Administrative detention would generate benefits because it improves our ability to respond to outbreaks from accidental and deliberate contamination of food, and to deter deliberate contamination. We have insufficient information to estimate benefits.

Risks: Regulations implementing legislation to protect the health of citizens against bioterrorism would advance the development, organization, and enhancement of public health prevention systems and tools. The magnitude of the risks addressed by such systems and tools is at least as great as the other risk reduction efforts within HHS' jurisdiction. These regulations will improve the ability to address credible threats of serious adverse health consequences or death to humans or animals.

Timetable:
Action Date FR Cite
NPRM  05/00/2003   
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: Undetermined 
Small Entities Affected: Businesses  Federalism: Undetermined 
Included in the Regulatory Plan: Yes 
Agency Contact:
Marquita Steadman
Senior Policy Analyst
Department of Health and Human Services
Food and Drug Administration
HFS-007, Center for Food Safety and Applied Nutrition, 5100 Paint Branch Parkway,
College Park, MD 20740
Phone:301 827-6733
Fax:301 480-5730
Email: marquita.steadman@cfsan.fda.gov

 
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