387 / 138
美國食品安全現代化法淺析
387
未有在美所有人或受貨人，則其外國所有人或受貨人在美國之代理
人或代表，視為進口商。」
154
而於自願性合格進口商計畫下，
FSMA
對「進口商」之定義為「將食品從國外帶入美國境內或致使食品被
帶入美國境內者」。
155
因此，前者之進口商必須位於美國境內，
而後者所稱之進口商（包括食品製造商、所有人、受貨人、或海關
登記之進口商）則可位於美國以外的其他國家；兩者之身分亦有可
能但不必然重疊。
FDA
對於進口商之雙重定義，可能使相關制度在
適用上產生混淆與紊亂，於
VQIP
企業準則草案評論期間內，曾有
評論意見指出類似問題。
156
惟
FDA
並未因而修改草案文字，仍於
154
21 U.S.C. 384a
(
a
)(
2
)
(
as amended by FSMA § 301
)
(
“[T]he term ‘importer’ means,
with respect to an article of food—[A] the United States owner or consignee of the
article of food at the time of entry of such article into the United States; or [B] in
the case when there is no United States owner or consignee as described in subpar-
agraph [A], the United States agent or representative of a foreign owner or con-
signee of the article of food at the time of entry of such article into the United
States.”
)
.
155
21 U.S.C. 384b
(
g
)
(
as amended by FSMA § 302
)
(
“[T]he term ‘importer’ means the
person that brings food, or causes food to be brought, from a foreign country into
the customs territory of the United States.”
)
.
156
Carlos Alvarez Antolinez, European Commission, Comment on Proposed Rule on
Accredited Third-Party Certification, FDA-2011-N-0144-0041
(
“The definition of
importer in this draft guidance appears to be unclear to the EU stakeholders. The
fact that it is not fully consistent with those used in other FSMA implementing rules,
or by US Customs, generates considerable confusion. In this regard, the incon-
sistency between this draft guidance and the proposed rule on FSVP is of particular
concern given the close relationship between the two programmes.”
)
; American
Frozen Food Institute, Comment on Proposed Rule on Accredited Third-Party
Certification, FDA-2011-N-0144-0045
(
“This situation adds significant confusion
for the trade community [and likely for FDA and CBP as well] in determining who
is actually liable for meeting which regulation or handling which part of a given
transaction. Importers will be required to change the terms of their negotiations
with business partners on every food purchase order in order to add clarity around