FDA Issues Final Rule on Sanitary Transportation of Human and Animal Food

The Rule

On April 6, 2016, the FDA published its Final Rule on Sanitary Transportation of Human and Animal Food establishing transportation requirements to ensure the safety of both human and animal food. This rule results from long-time concerns over the need for regulations so that foods are being transported in a safe manner. It reaffirms that transportation plays a critical role in preventing risks to the nation’s food supply.

The final rule is part of the implementation of the 2005 Sanitary Food Transportation Act (SFTA) and the 2011 FDA Food Safety Modernization Act (FSMA). These two statutes require the FDA to issue regulations requiring shippers, carriers by motor vehicles or rail vehicle, receivers, and other persons engaged in the transportation of food to use sanitary transportation practices to ensure that food is not transported under conditions that may render the food adulterated. The rule is one of seven fundamental rules proposed since January 2013 and is the sixth of seven regulations that have been finalized. This is also the only rule of the seven that is directly applicable to transportation.

The rule applies to shippers, loaders and carriers who transport food in the U.S. by motor vehicle or rail (whether or not food is offered or enters interstate commerce), and applies to food not completely enclosed by a container. Four key requirements are addressed: (1) vehicles and transportation equipment, (2) transportation operations, (3) records and (4) training. The new rule applies to the design and maintenance of vehicles and transportation equipment to ensure they do not cause the food being transported to become unsafe. It also requires specific measures be taken during the transport of food to ensure food safety, such as adequate temperatures. The rule requires carriers to train their personnel in sanitary transportation practices and to document the training conducted. Regulated parties must also maintain records of written procedures, agreements and training records (required for carriers).

So how will the rule on Sanitary Transportation of Human and Animal Food affect the transportation industry? First and foremost, the rule is flexible. It allows the industry to continue to use industry “best practices” which is defined as “commercial or professional procedures that are accepted or prescribed as being correct or most effective.” These practices include successful sanitation procedures, effective training programs, records retention procedures, successful inspection and monitoring programs.

The final rule indicates that businesses (other than small businesses) will have one year from date of publication to comply, so until April 7, 2017. Small businesses have 2 years to comply. “Small businesses” are defined as businesses other than motor carriers that are also not shippers and/or receivers and that employ fewer than 500 persons, and motor carriers having less than $27.5 million in annual receipts.

Before the rule becomes enforced in April 2017, those involved in the food transportation industry should review their vehicle and transportation equipment to determine how the new requirements may affect them. To comply with this new rule, all companies need to develop and implement a written procedure governing all aspects of their shipping operations. The procedure should spell out in detail the sanitation procedures for both loading and unloading and shipping equipment. If the current “best practices” are not suitable, then changes to the procedure must take place.

Failure to comply with the rule is subject to injunction and criminal prosecution. Further, food will be deemed “adulterated” if it is transported or offered for transport by a shipper, loader, carrier or receiver under conditions that don’t comply with the rule. FDA also intends to conduct some inspections and the Department of Transportation (DOT) will establish procedures for transportation safety inspections to be conducted by DOT or state agencies.

These new requirements may be used by plaintiffs to establish negligence and negligence per se, and may appear in litigation through discovery or FOIA requests. On the other hand, proper compliance with the rule will allow companies to prove safe and proper practices.

For more information on the Sanitary Transportation of Human and Animal Food visit: STHA Rule/2016/04/06/2016-07330/sanitary-transportation-of-human-and-animal-food

Anna Newell
Anna Beck is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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ATA Reports that Freight Transportation Will See Continued Growth in Years to Come

As the economy grows, so does the trucking industry. Last month, the U.S. Freight Transportation Forecast to 2027, compiled by the American Trucking Association (ATA), predicted that the future of freight transportation will grow in both freight volume and the amount of goods being transported by trucks over the next 20 years.

ATA President and CEO Chris Spear explained that Forecast “has proven to be a valuable tool for everyone from industry leaders to government policy makers.” This prediction will be used as a guideline to help trucking companies develop strategies for the future, improve revenue and find methods to improve shipping.

The Forecast suggested that overall revenue for the industry will rise nearly 66 percent and tonnage will increase 24 percent by 2022. This increase is due to the growth in the overall economy, according to ATA’s Chief Economist Bob Costello. “As we continue to see growth in the overall economy, particularly due to manufacturing, consumer spending and international trade, we will also see increases in the amount of freight moved in America’s trucks,” Costello reported on ATA’s website.

However, as the trucking industry is seeing growth, other modes of transportation may see a decline in tonnage and revenue. The ATA predicts that by 2022, rail transportation may only account for 14.6% of the transportation industry compared to 15.3% it accounted for in 2010. Rail and water transportation will lose market share to pipelines as the U.S. energy production grows.

In contrast to the growing trucking industry, driver shortage is continuing to be a problem across the industry and is expected to worsen as drivers retire and hiring qualified truck drivers becomes more and more difficult. The ATA reasons that the shortage may be due to factors such as demographic, regulatory and the fact that drivers may be away from home for long periods of time. The increase in trucks on the road in the coming years may present a problem for companies if there is a shortage in drivers. That is why organizations such as Trucking Moves America Forward (TMAF) are working to ensure the trucking industry remains thriving.

“We do know as long as our economy continues to grow, trucks will continue to move the vast majority of America’s goods, underscoring our industry’s critical role in our country’s future,” Spear reported on ATA’s website. Trucks are essential to our daily lives and there are no signs that the industry is slowing. Which is good news because as TMAF puts it – when trucks stop moving, the country stops moving.

U.S. Freight Transportation Forecast to 2027 is available for purchase at: ATA Business Solutions

Anna Beck is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Anna Newell

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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The Feds Release First Guidelines on Autonomous Vehicles: Trucking Industry Input Conspicuously Void

The trucking industry moves over 70% of the domestic freight in the U.S.  As we recently wrote, there is a strong push by technology companies to bring autonomous trucks to America’s roadways. According to a recent study by McKinsey & Company, by 2025 at least one of every three new heavy trucks will be either fully autonomous or have a high level of autonomy. Considering 2025 is less than ten years away, we may be on the precipice of a new age in transportation.

With the growing push for automation, on September 20, 2016, the U.S. Department of Transportation released the first federal guidelines for the testing and deployment of autonomous vehicles. These guidelines centered around a 15-point “safety assessment” process with the intent to ensure safety compliance. The policy requires manufacturers to establish how they are meeting federal requirements in 15 areas such as operational design domain, object and event detection and response, data recording and sharing and human machine interface just to name a few.

The guidelines were written with the input of truck manufacturers such as Daimler who have been on the forefront of this technology, and several others. Safety groups including Mothers Against Drunk Driving and the National Safety Council have also largely supported the regulations. Deborah Hersman, chief executive of the National Safety Council stated, regarding the regulations, “[t]his policy gives carmakers and States the green light to innovate while keeping safety at the forefront.”

However, the groups conspicuously absent from the process were those who represent trucking companies such as the American Trucking Association. Chief executive of the American Trucking Association, Chris Spear, responded to the regulations on behalf of the ATA. “It is disconcerting that the department and the administration have developed these guidelines with virtually no involvement from the trucking industry,” said Spear and later stated “… any safety and highway infrastructure debate and regulatory framework that excludes trucking is incomplete.”

While Secretary of Transportation Anthony Foxx stated the policy is a living document which “leaves room for more growth and changes in the future” it is concerning that the largest end users of commercial autonomous vehicles were left out of the initial process.

One thing we can count on, especially when talking about the federal government, more regulations for autonomous vehicles will be coming down the pike in the years to come as this technology moves closer to realization. Due to the trade cycle for the industry, and if the McKinsey and Company study is accurate, it is very likely most trucking companies will have some autonomous vehicles in their fleets by 2025.

As the development and expected widespread usability of autonomous vehicles accelerates, we are remaining vigilant in keeping an eye on the road ahead. If you have any questions about the future of CMV autonomous vehicles please do not hesitate to contact us.

Brandon Howard is an associate at Roberts Perryman. Brandon’s practice is focused on Transportation Law & Litigation. Brandon is in the Springfield office.

Brandon Howard

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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National Truck Driver Appreciation Week September 11-17th: America Honors Truck Drivers

This week America is celebrating truck drivers across the county with National Truck Driver Appreciation Week. The week kicked off on September 11th and extends until September 17th, honoring the 3.5 million men and women professional truck drivers committed to delivering products and supplies across America each and every day.

Whether its milk and cereal at the store, a drink from a vending machine or your child’s school supplies – these everyday essentials were most likely delivered by a truck. According to the American Trucking Association (ATA), more than 80% of U.S. communities rely exclusively on truck drivers to deliver their goods and commodities. This allows the nation’s most isolated areas to have access to the necessities of daily living.

ATA’s President and CEO Chris Spear points out that this week is about raising public awareness and support for the professional truck drivers and the work they do in our communities year after year. “We’re fortunate that truck drivers have dedicated their careers to delivering critical goods like medicine, food and school books,” explains Spear on ATA’s website.

Beginning this week, Trucking Moves America Forward (TMAF), the industry-wide education and image movement, has revealed TMAF billboards along major city highways and freeways as part of its advertising campaign. The TMAF billboard portrays #TruckingLife in a swim coach scenario, and can be viewed for the next four weeks in Dayton, Ohio; Dallas, Texas; Missoula, Montana; Kansas City, Missouri; and Knoxville, Tennessee. The billboard displays truck drivers as more than just professional truck drivers; they are parents, friends and neighbors and getting home safe is their number one priority.

In the spirit of National Truck Driver Appreciation Week, here are eight ways trucking companies and the general public can say thank you to all the drivers on the road that keep America moving.

• Give Thank You Cards. Trucking companies can send a thank you card to their drivers and the drivers’ families. And anyone can send a card to a truck driver they know. Or, look up a nearby trucking company and send a batch of thank you cards. If you don’t know a driver’s name, simply address the card “Dear Truck Driver.” You can also place a thank you note on the windshield of a truck that you see parked in parking lots, truck stops and gas stations.
• Pay It Forward. Companies can buy coffee or breakfast for their drivers this week. For the general public, when you are at a gas station or truck stop, look around for any truck drivers. If they are buying coffee or food, go ahead and pay for it at the cash register ahead of them.
• Free Lunch: Trucking companies can offer free lunch to its drivers. Since the drivers are most likely out on the road, providing packed lunches is a great option for the drivers to take on the road. Be sure to include a thank you note with the lunch. For the general public, if you see a truck driver eating at a truck stop or restaurant, offer to buy their lunch.
• Special Offers: Trucking companies can make a list of retail and restaurants that are offering specials or deals to drivers during this week or month. Hand the list out to your drivers.
• Share On Social Media: Promote this week by posting on social media sites and say thank you. Trucking companies can make a short video to show their appreciation and even feature a few of its drivers. The general public can post a thank you to a driver they know or to all drivers. Spread the #ThankATruckDriver movement.
• Host A Dinner: Trucking companies can organize a dinner for drivers and their families. Have a buffet-style dinner with some games or chances to win prizes.
• Offer Prizes: Throughout the rest of the week, companies can have giveaways with prizes. Each day until September 17th, have a drawing for prizes like CB radios, audio books or other tech devices. You can have the last prize be a grand prize, such as a trip for two or gift certificate to a restaurant.
• Say Thank You. The simple gesture of saying “thank you” to any truck driver you see will let them know you appreciate everything they do. Companies can tell their drivers not only how much they impact the company, but also the economy. The general public can simply extend a thank you to any driver they see or smile and wave to truck drivers out on the roadways.

National Truck Driver Appreciation Week may just be one week, but it’s important to remember that the appreciation shouldn’t end after September 17th. It’s crucial to still honor and recognize these road warriors and the hard work they put in each day. The products, clothes, food and supplies we use each day were made available because these men and women delivered it.

For more information about Truck Driver Appreciation Week, visit ATA’s website http://www.trucking.org and TMAF’s website http://truckingmovesamerica.com.

Anna Beck is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Anna Newell

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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DOT Proposes Truck Speed-Limiter Rule


After nearly a decade- long push by trucking and safety advocates to put a speed-limit restriction on trucks and other commercial vehicles, the National Highway Traffic Safety Administration (NHTSA) and the Federal Motor Carrier Safety Administration (FMCSA) have jointly issued a notice of proposed rulemaking (NPRM) on August 26, 2016-which has not been officially published in the Federal Register, yet. Once published, the Department of Transportation (DOT) will be seeking public comment on the rule for the 60 days following the NPRM’s official publication date.  (Read NPRM Here)

Specifically, the NHTSA is proposing a new Federal motor vehicle safety standard (FMVSS) requiring that each new multipurpose passenger vehicle, truck, bus and school bus with a gross vehicle weight rating (GVWR) of more than 26,000 pounds be equipped with a speed limiting device.

FMCSA is proposing a complementary Federal motor carrier safety regulation (FMCSR) requiring each commercial motor vehicle (CMV) meeting the GVWR cut-off weight limit discussed above, to be equipped with a speed limiting device meeting the requirements of the proposed FMVSS applicable to the vehicle at the time of manufacture.  Motor carriers operating such vehicles in interstate commerce would be required to maintain the speed limiting devices for the service life of the vehicle.

According to DOT, limiting the speed of heavy vehicles would reduce the severity of crashes involving these vehicles and reduce the resulting fatalities and injuries. DOT said that implementing the safety proposal “could save lives and more than $1 billion in fuel costs each year.”

Big Industry Players’ Reactions

The American Trucking Associations (ATA) “hailed” the NPRM “as a potential step forward for safety.”  The ATA President and CEO Chris Spear was quoted saying, the lobby was “pleased NHTSA and FMCSA have, almost 10 years after we first petitioned them, released this proposal to mandate the electronic limiting of commercial vehicle speeds. Speed is a major contributor to truck accidents and by reducing speeds, we believe we can contribute to a reduction in accidents and fatalities on our highways.”

On the other hand, the Owner-Operator Independent Drivers Association (OOIDA) responded to the NPRM by calling it a “dangerous mandate.” OOIDA contends that use of “such devices create speed differentials that lead to more crashes and promote road rage among other motorists.” OOID also emphasizes the importance of all vehicles traveling at the same relative speed.

Maximum Speed Limit

Of note, the regulatory body did not propose an actual maximum speed limit and merely discusses the benefits of setting the maximum speed at 60, 65, and 68- we anticipate this will be a large component of what the DOT is seeking feedback on during the public comment period.

I came across a poll on Overdrive’s website- Poll:  If any, what top speed should the speed limiter rule require- 3,064 readers had cast their votes.  (Link Here) 43.6% of voters were against the speed limiter requirement all together.  Amongst the other votes cast there were, 18.47% for 70 mph; 18.18% for 75 mph; 10.87% for 80 mph; 4.08% for 68 mph; 2.45% for 65 mph; 0.91% for 60 mph; 1.34% other; and .1% didn’t know. Overdrive’s readership is predominantly Owner Operators.  We would anticipate significantly different responses from an ATA membership poll.  Clearly, there are very different schools of thought within the industry.  Hopefully the most fact based direction, in terms of safety, will rise to the top and prevail.

As anyone in trucking knows, the regulations are seemingly never-ending.  As members of the trucking industry ourselves, we always strongly encourage participation during public comment periods following a notice of proposed rulemaking.  As a safety-minded community, those making the rules need to hear from the people who are seeing and living the day-today happenings on our roads.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Emily Littlefield

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com


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Are Autonomous Trucks Closer Than We Think?

Uber announced this month that it would begin operating autonomous cars around Pittsburgh.  While the vehicles will initially deploy with a human in the driver seat, the plan is to eventually phase out the drivers so the vehicles are truly autonomous.  Soon Uber users in Pittsburgh will have the ability to experience something that most of us only imagined while watching a movie.

Overshadowed by Uber’s announcement regarding their Pittsburgh fleet was the company’s acquisition of San Francisco self-driving truck startup Otto for approximately $680 million.  Anthony Levandowski, co-founder of Otto, has been put in charge of Uber’s autonomous vehicle programs in San Francisco, Palo Alto and Pittsburgh and Otto has expressed a desire to quickly bring to market their autonomous fleet using Uber’s resources.  In fact, Otto hopes to have its equipment on its partner’s trucks within the next 12 to 18 months.

While proponents of autonomous technology point to perceived benefits of better fuel efficiency, less pollution and fewer accidents, those against have cited the millions of jobs that would be lost.  Otto states for the foreseeable future they view their equipment as a co-pilot for drivers.  While we appear to be on the cusp of a new dawn in transportation, similar to when horses and wagons were replaced by the internal combustible engine, there are significant questions that will need to be answered.

The most glaring issue in the transportation industry is the interplay between autonomous vehicles and the Federal regulations governing motor carriers.  Will “drivers” in autonomous vehicles need to abide by the requirements for hours of service and logs even though eventually they will not technically drive the vehicle?  Can a truly autonomous vehicle operate 24 hours a day, 7 days a week?  How often will autonomous vehicles need to be inspected or have preventative maintenance performed; more due to less driver intervention and more reliance on the technology?  There are no answers to these questions yet as the technology is still in the testing stage. It is difficult to envision a future where humans will ever fully sacrifice their right to control a vehicle. Accordingly, the Federal regulations could become more complex having to deal with both manned and unmanned vehicles.  Undoubtedly, the issues will be far and wide as it relates to regulation.

There are also more practical issues regarding the ability of such vehicles to adapt to unforeseen circumstances.  While the vehicles may not have issues with traveling in a straight line from Point A to Point B, will they ever be able to handle shifting cargo, debris falling into the road or suicidal deer?  In test runs, the driver for Otto had to disengage the autonomous system when similar events occurred. Unless the vehicles can perform corrective maneuvers on their own, a company employing such autonomous technology would almost certainly face a greater risk of liability in an accident due to the failure to attempt to avoid the collision if the driver didn’t reengage.

There is no denying a sense of excitement as technology progresses but there are concerns regarding the ability of the industry to adapt at the same pace.  It is important to remain up to date in an ever changing technological world.  At Roberts Perryman we are keeping a close eye on technology & new developments in the world of autonomous commercial motor vehicles.

Brandon Howard is an associate at Roberts Perryman. Brandon’s practice is focused on Transportation Law & Litigation.  Brandon is in the Springfield office.

Brandon Howard
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com


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FMCSA to Study Driver Detention in Newly Announced Audit

No matter where you work, time invariably equals money. Drivers typically work tight schedules and any interruption affects the schedules of other drivers waiting at shipping facilities. This has ripple effects to countless other drivers using the same facility to load or unload. According to a 2009 FMCSA study, U.S. carriers could gain $3.08 billion annually by eliminating loading and unloading inefficiencies. This time waiting is unproductive and inefficient, and, in the context of the trucking industry can lead to serious ramifications, including the loss of customers or fatal accidents.

The FMCSA has been studying how detention affects drivers for a long time.  One study dating back to 2001, found a correlation between long delays in loading and unloading and crashes. As part of the FAST Act, the FMCSA was directed to issue regulations on collecting data on loading/unloading delays and report on their impact on transportation efficiency and its effect on the economy as a whole. This led to the recent announcement of the Inspector General of the Department of Transportation to initiate an audit of loading/unloading delays. No current law addresses driver detention or load/unloading delays other than drivers’ HOS requirements. In announcing the audit, the IG stated “[t]ruckers who experience these delays may then drive faster to make deliveries within hours-of-service limits or operate beyond these limits and improperly log their driving time, thus increasing the risk of crashes and fatalities.” The DOT stated its goals for the audit are to assess available data on motor carrier loading and unloading delays and to provide information on measuring the potential effects of loading and unloading delays.

Besides being an issue of safety, excessive loading/unloading delays can lead to late or missed deliveries. This can then lead to the loss of customers. Also, loading/unloading inefficiencies have a more pronounced effect on smaller carriers. A Virginia Tech Transportation Institute study found medium-sized carriers were detained for similar average detention times as large carriers, but were detained about twice as often. This is due to several factors, including larger carriers having long-term customers with close relationships so that formal procedures can be adopted, familiarity with those customers’ facilities and operations, and better logistical support. These advantages also provide larger carriers with more bargaining power to include in their contracts and enforce provisions related to detention charges, which naturally impacts detention times for larger carriers. Smaller carriers and owner-operators lack this leverage.

While the audit is mainly to collect data, this audit may lead to further studies which may lead to future regulations regarding driver detention, an area where the FMCSA has long been interested in improving and one where the U.S. lags behind other countries. For example, the U.S. may want to consider the example of Australia. In 2008, Australia passed sweeping laws regarding driver fatigue. The most important aspect was the concept of the Chain of Responsibility (CoR). Under the CoR, everyone in the supply chain, not just the driver or his or her employer, is responsible for preventing driver fatigue and ensuring drivers are able to comply with HOS regulations. In the event of a safety breach, authorities may investigate along the supply chain to determine if any actions, inactions, or demands of any person in the CoR contributed to the breach and hold the those responsible liable.

Because this audit likely precedes any future regulation by years, it is even more important for carriers to do what they can now to reduce unreasonable delays that can affect their bottom line. Even though many of the factors contributing to detention times are controlled by the shippers and receivers, studies indicate several factors in the control of drivers and carriers. These factors include having a driver’s paperwork in order, driver training and retention, and working with shippers/receivers in fostering deep relationships in order to become more knowledgeable on the procedures of specific companies and facilities. Additionally, those carriers with resources to do so should consider adopting helpful technologies in the form of trailers with tracking technology or using drop and hook operations more often.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.


Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

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