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South Florida food suppliers who fly in everything from fresh Peruvian asparagus to Israeli bell peppers are warning that new federal rules designed to protect the U.S. food supply from terrorist attacks will spoil their business. And as the compliance deadline of Dec. 12 approaches, attorneys in South Florida and around the country are scrambling to snare clients who need a guide through the new regulatory maze. Title III of the Bioterrorism Act of 2002 mandated that the Food and Drug Administration apply a thick new layer of regulation on foreign and domestic food growers, processors and shippers. After a public input period that drew 10,000 comments, the agency issued final rules last week. One particularly controversial rule requires companies to file detailed notices of food and beverage shipments as long as eight hours before their arrival in the United States. About a third of all U.S. imports are food or food-related. And in South Florida, which is a distribution hub for fresh fruits and vegetables from Central and South America, more perishable commodities arrive at Miami International Airport than anywhere else in the country. Some food safety experts welcomed the new rules as long overdue. The criticism from companies and business groups that the rules will hurt business is misguided, they say. Such criticism, in their view, represents an overreaction from an industry that has been forced by the post-Sept. 11 environment to bow to federal regulation like that that has been imposed for decades on meat and poultry importers. “Food is clearly a target of terrorists,” said Caroline Smith DeWaal, director of food safety at Washington, D.C.’s nonprofit Center for Science in the Public Interest. “It’s time to put these types of minimal controls in place.” But critics from the food industry blasted the new rules as unrealistic and damaging to business. “When it takes only 2 1/2 hours for a shipment to arrive from Central America, that doesn’t give us time for prior notification, so produce is going to have to stay at airports for 24 hours,” said Maria Bermudez, a corporate executive with Customized Brokers in Miami who’s active in industry lobbying efforts. “We’re looking at a lot of produce not being moved.” Delivery delays promise to be even longer if discrepancies exist in shipping documents or fresh cargo arrives late at airport loading docks, said Bermudez and other industry executives. EVEN PET FOOD The Bioterrorism Act, the short name of the “Public Health Security and Bioterrorism Preparedness and Response Act of 2002,” requires all foreign and domestic companies that manufacture, process, pack or warehouse food destined for sale in the United States — including pet food — to register with the FDA by Dec. 12. Companies with multiple operations must register each facility. Besides importers, other companies in the United States that must register include those that transport or distribute food. In a news release, the FDA estimates about 420,000 domestic and foreign “food facilities” will register. “This will allow FDA to follow through quickly on high-risk situations,” an FDA statement says. Some big companies that must register are obvious, including Coral Gables, Fla.-based Fresh Del Monte Produce; Dole Foods of Westlake Village, Calif.; Bacardi U.S.A. in Miami; and Weston, Fla.-based Hershey Foods Latin America. Other well-known Florida names expected to register include Ryder System, United Parcel Service, FedEx, Crowley Liner Services and American Airlines. Companies here and abroad that fail to register won’t get an FDA import number. And without that number, they won’t be able to bring food or beverages into the United States after Dec. 12. Congress authorized new spending of almost $100 million a year so the FDA can hire 800 additional inspectors to watch the nation’s food supply. Even so, there won’t be inspectors at every port of entry in the United States, and that’s a key reason for the increased regulation. Government authorities expect about 25,000 advance notifications of food shipments every day that will tell them when shipments will be arriving at U.S. ports and what the shipments will contain. The idea is to give inspectors enough time to schedule food inspections. Besides the registration and prior notice requirements of the Bioterrorism Act, businesses also must keep new records. The rules require keeping documents about anyone who touches U.S.-bound food, inside or outside this country, for two years. The act also allows the government to impound food that arrives in the United States without all its paperwork in proper order. “It will be detained at a government-designated warehouse until everything is worked out, at the expense of the importer,” said customs and trade attorney Peter Quinter, a partner at Becker & Poliakoff in Fort Lauderdale, Fla. GOOD FOR LAWYERS DeWaal said there is a dividend of protection for consumers in the government’s efforts to secure the nation’s food supply from terrorists. For example, she said, the new food tracking system will allow authorities to better monitor for natural food contamination. Unfortunately, she said, Congress did not give the FDA authority to order a mandatory recall of food products. But the new rules have galvanized the food industry. Importers, on their own and through associations like the International Food Coalition and the Miami Perishables Coalition, have accused the government of imposing overly burdensome rules. “The government has legislated this without a pragmatic understanding of how to execute the legislation they’ve come up with,” said Peter A. Warren, director of international operations for Rosemont Farms, a 60-employee distributor of fresh fruits and vegetables based in Boca Raton, Fla. Warren said the new rules could cost the industry, and consumers, untold millions of dollars. U.S. trading partners in Europe also have expressed jitters about the new rules. In June, the European Commission, the governing body of the European Union, submitted a list of concerns about implementation to the FDA. “While fully supporting the aim of protecting the food supply chain, the E.C. is concerned about the effectiveness, and potential for trade distortion, of the measures proposed,” the commission said in a statement. While the new rules may pain the food industry, they may prove good for South Florida lawyers. On Nov. 5, Becker & Poliakoff’s Quinter plans to conduct a compliance seminar in Miami for food industry executives, warehousepeople, brokers and shippers. “All non-U.S. companies must not only register, but appoint a U.S. agent who will be FDA’s contact in an emergency,” Quinter said. “We want to be that U.S. agent.”

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