[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Proposed Rules]
[Pages 76228-76229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24435]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Chapter I, Subchapter B
[Docket No. PHMSA-91-13289 (FS-1)]
RIN 2137-AC00
Safeguarding Food From Contamination During Transportation
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Withdrawal of notices of proposed rulemaking.
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA), the successor agency to the Research and Special Programs
Administration (RSPA), is withdrawing the notice of proposed rulemaking
published on May 21, 1993, and the supplemental notice of proposed
rulemaking published on December 21, 2004. In those notices, the Agency
proposed to implement the Sanitary Food Transportation Act of 1990 by
amending its regulations to address the safe transportation of food and
food products in commerce. On August 10, 2005, the President signed the
Sanitary Food Transportation Act of 2005, which transferred authority
for regulating the safe transportation of food from the U.S. Department
of Transportation to the U.S. Department of Health and Human Services.
FOR FURTHER INFORMATION CONTACT: Helen Engrum, Office of Hazardous
Materials Standards, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590-0001, telephone (202) 366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
The Sanitary Food Transportation Act of 1990 (SFTA); required the
[[Page 76229]]
Department of Transportation (DOT) to promulgate regulations to promote
the safe transportation of food products. (Pub. L. 101-500, 104 Stat.
1213 [Nov. 3, 1990]). Among other requirements, SFTA required DOT, in
consultation with the Department of Health and Human Services (HHS),
the Department of Agriculture (USDA), and the Environmental Protection
Agency, to:
(1) Issue regulations with respect to the transportation of food,
food additives, drugs, devices, and cosmetics, as defined in the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), in motor
vehicles or rail cars that are used to transport either refuse or non-
food products that could make the food unsafe as a result of such
transportation;
(2) Issue regulations governing the construction and use of cargo
tanks and rail cars used to transport food products, including
prohibiting the transportation of food products in cargo tanks and rail
cars used to transport non-food products that would make the products
unsafe; and
(3) Designate and publish a list of non-food products that may not
be transported in cargo tanks and tank cars that are also used to
transport food products.
II. Current Rulemaking
On May 21, 1993, the Agency published a notice of proposed
rulemaking (NPRM) to implement SFTA. (58 FR 29698). Commenters
generally opposed the proposals in the NPRM and recommended that DOT
defer to the HHS' Food and Drug Administration (FDA) and USDA on food
safety issues.
After considering the comments to the NPRM, the Agency concluded
the expertise for ensuring the safety of our nation's food supply,
including transportation, lies with USDA and FDA. Based on its work
with USDA and FDA, DOT determined that the public interest would be
more effectively served and better addressed by building on the present
statutory authority, existing enforcement and technical expertise, and
operational framework already established within USDA and FDA.
Implementation of a food transportation safety program under DOT would
have required unnecessary duplication of personnel and funds to
promulgate regulations and to conduct certain training, research and
testing activities. It could result in duplication, overlap, or
conflict with current or pending FDA and USDA regulations.
After a thorough review of the alternatives, the Agency issued a
supplemental notice of proposed rulemaking (SNPRM) on December 21, 2004
proposing to direct compliance with the existing requirements of FDA
and USDA for the sanitary transportation of food. (69 FR 76432). In the
SNPRM, the Agency proposed to add a new part 121 to subchapter B of
Title 49 of the Code of Federal Regulations to include definitions
applicable to the transportation of food and food products and to refer
to requirements of USDA (9 CFR parts 1 through 599) and FDA (21 CFR
parts 1 through 1299) that apply to persons who offer for
transportation or transport food in commerce by motor vehicle or rail
car. We also proposed to recommend use of guidance documents and
materials promulgated by FDA and USDA related to food transportation
safety and security. This approach would have prevented duplication or
conflict with existing regulations and would have assured primary
responsibility for food safety would rest with FDA and USDA.
In response to the SNPRM, we received approximately 17 comments
from food associations, highway and rail associations, freight
companies, the Dangerous Goods Advisory Council, and several state
governments' departments of agriculture. The majority of comments
strongly supported DOT's efforts to implement SFTA by relying on the
agencies that are best equipped to address these issues. The commenters
agreed safeguarding food and food products from contamination during
transportation in commerce is best handled and carried out by USDA and
FDA. Several commenters suggested revisions to USDA and FDA
requirements to address perceived shortcomings in those regulatory
programs. However, such revisions were not proposed and thus are
outside the scope of the rulemaking.
III. Sanitary Food Transportation Act of 2005
On August 10, 2005, the President signed the Safe, Accountable,
Flexible, and Efficient Transportation Equity Act--A Legacy for Users
(SAFETEA-LU; Pub. L. 109-59, 119 Stat. 1144). Subtitle B of Title VII
of SAFETEA-LU--the Sanitary Food Transportation Act of 2005--amended
the Federal Food, Drug, and Cosmetic Act to assign the regulatory
authority for food transportation safety to HHS and to require DOT, in
consultation with HHS and USDA to establish procedures for
transportation safety inspections to identify suspected incidents of
food contamination or adulteration. Accordingly, DOT's responsibilities
in this area are limited to (1) developing and implementing a training
program for its inspectors that perform commercial motor vehicle or
railroad safety inspections, and (2) notifying HHS or USDA, as
applicable, of any instances of potential food contamination or
adulteration identified during safety inspections. DOT is no longer
required to issue regulations applicable to the safe transportation of
food.
Accordingly, PHMSA is withdrawing the May 21, 1993 NPRM, and
December 21, 2004 SNPRM and terminating this rulemaking docket.
Consistent with the re-allocation of food safety responsibilities in
SAFETEA-LU, we will continue to work with USDA and FDA on inspection
and enforcement issues. To this end, the three agencies plan to enter
into a memorandum of understanding to ensure the agencies work together
effectively to assure the Nation's food supply is safe and secure,
particularly in the distribution channels involving transportation.
USDA's Food Safety and Inspection Service (FSIS) and FDA will provide
practical information regarding their regulations and activities
concerning food safety and security. Further, FSIS and FDA will provide
guidance to, and coordinate with, DOT on sharing of significant
information resulting from DOT safety inspections. FSIS and FDA will
work with DOT to develop standard training for transportation
inspectors to enable them to recognize suspected incidents of
contamination or adulteration or other potential food safety or
security concerns encountered during their inspections and to report
these incidents to FSIS or FDA.
Issued in Washington, DC on December 20, 2005, under authority
delegated in 49 CFR 1.53(i).
Stacey L. Gerard,
Acting Assistant Administrator/Chief Safety Officer.
[FR Doc. 05-24435 Filed 12-22-05; 8:45 am]
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