In early February, the U.S. Food and Drug Administration (FDA) issued its seventh and final major rule as part of the implementation of the Food Safety Modernization Act. The proposed rule seeks to prevent the contamination of human and animal food during transport by establishing requirements for the design and maintenance of vehicles and transportation equipment, transportation operations, training of carrier personnel and recordkeeping. It would apply to shippers, receivers and carriers who transport food in the United States by motor or rail. It would also apply to a person outside of the United States, such as an exporter, who ships food to the United States in an international freight container (including via ocean or air carrier) and arranges for the transfer of the container in the United States to a motor vehicle or rail vehicle for transportation in U.S. commerce, if that food will be consumed or distributed in the United States.

In particular, the proposed rule will require:

  1. Shippers, carriers (motor and rail) and consignees to assign responsibility for regulatory compliance to competent supervisory personnel, to take steps (such as isolation or segregation) to prevent foods from becoming contaminated by other items in the same shipment, and to ensure that food requiring temperature control is transported within the required temperature range to prevent spoilage or growth of microorganisms.
  2. Shippers to provide carriers with written instructions regarding necessary sanitary and temperature conditions (where relevant) for the transport of their cargo and to inspect vehicles or transport equipment before loading to ensure that the vehicle or equipment will not contaminate the foods and/or is at the necessary temperature before loading.
  3. Motor and rail carriers to provide clean and properly cooled equipment, to maintain records that would permit them to demonstrate to the shipper or consignee that the proper temperature was maintained during transport (though this responsibility may be transferred contractually to the shipper), to maintain written procedures specifying practices for cleaning and sanitizing equipment, to provide training to employees regarding food safety, and, for bulk equipment, to identify the three previous cargoes carried in the equipment and the most recent cleaning of the equipment.

As written, the rule does not apply to ocean or air carriers. However, the FDA could still consider amending the proposed rule to include those carriers as part of the rulemaking process, especially if the FDA receives public comments requesting such action. As such, and because of the effects to their customers’ operations and a potential spillover into contractual discussions, the rulemaking should remain an item of continued interest and attention for ocean and air carriers.

Comments to the proposed rule are due by May 31, 2014.