Prior notice: the food filing due before the ship arrives

Every clock on this site counts forward. Free time starts at discharge and runs until the box moves. Prior notice is the other kind: it counts backwards from arrival, and by the time the arrival notice reaches the desk the deadline has usually passed.

The rule is short enough to quote. A prior notice for an article of food must be submitted to FDA and confirmed by FDA for review:

(1) If the article of food is arriving by land by road, no less than 2 hours before arriving at the port of arrival; (2) If the article of food is arriving by land by rail, no less than 4 hours …; (3) If the article of food is arriving by air, no less than 4 hours …; or (4) If the article of food is arriving by water, no less than 8 hours before arriving at the port of arrival.

The three words that move the deadline

“Confirmed by FDA for review” is doing the work in that sentence, and the next paragraph says why:

Your prior notice will be considered submitted and the prior notice time will start when FDA has confirmed your prior notice for review.

So the eight hours are not eight hours before you file. They are eight hours before FDA’s reply comes back carrying a Prior Notice Confirmation Number. A filing sent with eight hours to spare and confirmed with seven is an untimely prior notice, and untimeliness is one of the three failures that produce the same consequence as filing nothing.

There is a filing window at the other end too, and the two channels disagree about it. A notice submitted through ABI/ACE/ITDS may not go in more than thirty calendar days before the anticipated date of arrival; through the FDA Prior Notice System Interface, not more than fifteen. Same consignment, two earliest dates, depending on which door the filing goes through.

What refusal is, in practice

Not a penalty notice. A custody change.

Food that arrives without adequate prior notice is “subject to refusal of admission under section 801(m)(1)”. Unless CBP agrees to immediate export under its own supervision, the article “must be held within the port of entry”, and then:

An article of food that has been refused … shall be considered general order merchandise as described in section 490 of the Tariff Act of 1930, as amended (19 U.S.C. 1490).

Which means the consignment joins the sequence general order sets out: moved under a custodial bond to a warehouse the importer did not choose, not entered, not delivered to the importer, owner or ultimate consignee. And then the costs clause, which is one sentence and the whole commercial point:

Neither FDA nor CBP are liable for transportation, storage, or other expenses resulting from refusal.

The same clause appears again in § 1.285 for food from an unregistered facility, which is held under a different authority with an identical outcome. A perfect prior notice does not cure an unregistered supplier; that is a second check, on the supplier rather than on the filing.

The ten days after, and the five after that

The exits are real and dated. Where food is refused for no prior notice and is not exported, the notice must be submitted “within 10 calendar days from the date the notice of refusal was issued”, or within ten days of the response to a request for FDA review. Miss all of those and the article is handled under the general order rules in 19 CFR part 127, except that it “may only be sold for export or destroyed”. The ordinary route, entering it for consumption later, is closed.

If the cargo does go back out, one piece of housekeeping is dated too: the prior notice “should be cancelled within 5-business days of exportation”.

Transit cargo is not exempt, and part of a consignment may be

Two scope rules catch desks out in opposite directions.

The subpart reaches further than consumption entries. It applies to food imported or offered for import “for use, storage, or distribution in the United States”, and then names, expressly, food for transshipment through the United States to another country, food for future export, and food for use in a US Foreign Trade Zone. A box that will never be entered still needs the filing.

And it reaches less far than “food”. Meat food products, poultry products and egg products that are at the time of importation under the exclusive jurisdiction of the US Department of Agriculture are outside the subpart altogether. So a mixed consignment can need prior notice on some lines and not on others, which is a document-pack problem rather than a filing one: somebody has to decide, line by line, which rule each item sits under.

Why this is a desk problem and not a broker problem

Because the filing is cheap and the information in it is not.

The deadline is hours, not days, and the inputs come off the supplier’s documents: the article, the manufacturer, the shipper, the grower where there is one, the country of production, the anticipated arrival. A pack that routinely runs about eight days late against free time will not reliably produce an accurate filing eight hours before a vessel berths, and an inaccurate one is refused on the same authority as a missing one.

This also sits beside, not inside, the other pre-arrival filing a US import carries. An importer security filing is due against lading at the foreign port; prior notice is due against arrival at the US one. Two filings, two clocks, two sets of data, and a single late supplier email can break both.

That is the case for chasing the documents on a schedule derived from the vessel rather than from the supplier’s convenience — which is what import document checking software is for, and what the demurrage clock starts charging for the moment the cargo is held.