22 JUNE 2017 • FOGHORN LEGISLATIVEREPORT By Ed Welch, PV A Legislative Director FDA has Authority Over Some PVA Vessels A re your vessel operations subject to oversight by the U.S. Food and DrugAdministration (FDA)? We at PVA Headquarters get member questions about FDA jurisdic- tion only infrequently, but inquiries do crop up occasionally. If your vessel engages in interstate travel, it is possible that you have en- countered FDA personnel. Not only does the FDA enforce food safety reg- ulations on covered vessels, it is also responsible for enforcing regulations related to general sanitary conditions on the vessels, including compliance with certain design criteria The FDA’s Interstate Travel Program has jurisdiction over a passen- ger-carrying “conveyance” engaged in “interstate traffic.” A passenger- carrying vessel is a conveyance, as are aircraft, charter bus coaches, and railroad passenger cars. The Interstate Travel Program also has jurisdiction over a covered vessel’s support facili- ties (caterers and commissaries that supply food and beverages), watering points, and waste-handling facilities. The FDA regulations applicable to a passenger-carrying vessel in interstate traffic are found in parts 1240 and 1250 of title 21 Code of Federal Regulations. Access them at www.ecfr.gov. Many PVAvessels operate on routes that are completely within the bound- aries of a single state. FDA has no authority over these operators; instead, they may be regulated and inspected by state or local health agencies. Interstate Traffic Sections 1240.3(h) and 1250.3(h) of title 21 Code of Federal Regulations defines the term “interstate traffic” as “(1) the movement of any conveyance, or the transportation of persons or property... (i) from a point of origin in any state ...   to a point of destination in any other state ...  or (ii) between a point of origin and a point of destination in the same state ... but through any other state ....” Under this definition of “interstate traffic,” vessels subject to FDA juris- diction include: gaming vessels that sail from U.S. ports into international waters on “cruises to nowhere;” ferries that operate from one state to another across bodies of water such as Long Island Sound, Delaware Bay, Lake Michigan, and the Hudson, Mississippi, and Ohio Rivers; and overnight cruise vessels that sail on the Mississippi River and its tributaries, the Columbia River, and up and down the Eastern Seaboard. The FDAalso asserts that it has juris- diction over a passenger-carrying vessel that departs from a place in one state, sails into the waters of an adjoining state (even when it doesn’t touch land at the second state), and then returns to the first state. This is an expansive con- struction of the term “interstate traffic,” but it is what is written in the Code of Federal Regulations. Also, it appears that the definition is written broadly enough to cover a “conveyance” that moves in interstate traffic even if passengers are not actually on board. Vessel Construction FDA has authority to inspect covered conveyances as they are being constructed and when they are operated. FDA can be involved in the con- struction of a covered passenger vessel from blueprint review through final inspection of the completed vessel. The FDA’s Public Health Service Handbook on Sanitation of Vessel Construction (PHS Publication No. 393) is an important reference guide for the construction of smaller passenger vessels and ferries. Generally, the FDA becomes involved when the shipbuild- er contacts the applicable FDA District Office (there are 20 of them) to start the plan/construction evaluation process. The agency first reviews the vessel’s blueprints and specifications. The review focuses on drawings of the proposed systems for potable water, grey water, sewage, drainage, and ven- tilation. Particular attention is given to the potable water system to ensure that there are no cross-connections with non-potable systems not equipped with properly-located backflow pre- vention devices. Sewage holding tanks must have sufficient storage capacity and Coast Guard-approved marine sanitation devices. Piping for grey water, sewage, and drainage must be separated from food and food contact surfaces to minimize the likelihood of contamination in the event of a leak. Specifications for food service equipment must comply with “approved” lists of equipment meeting applicable food safety equipment standards. Layouts of food prepara- tion, storage, and service spaces must ensure that plenty of hand-washing opportunities exist and that food PVA staff believes that FDA’s resources are stretched thinly and that the agency may not exercise its legal authority in some situations in which it has jurisdiction.