United States Standards for Condition of Food Containers

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

The Agricultural Marketing Service (AMS) proposes to amend the regulations governing the United States (U.S.) Standards for Condition of Food Containers. AMS regularly reviews standards to determine if they meet current industry practices. Based on our most recent review, we believe that the U.S. Standards for Condition of Food Containers needs to be revised. The revisions are necessary in order to provide standards that reflect current industry practices. Revisions to the U.S. Standards for Condition of Food Containers include simplifying Tables I, I-A, II, II-A, III, III-A, and III-B for sampling plans for normal, tightened, and reduced condition of container inspection to reflect the type of sampling plan used (single or double). It also includes updating the Acceptable Quality Levels (AQLs), Tables IV—Metal Containers, V—Glass Containers, VI—Rigid and Semirigid Containers, VII—Flexible Containers (Plastic, Cello, Paper, Textile, etc.), and X—Defects of Label, Marking, or Code (currently Table VIII) to incorporate new defects and updating current defects to include defects that would correspond to new packaging technologies such as aseptic packaging, metal cans with easy open lids, and plastic rings that hold several containers together. This revision also proposes adding new defect tables entitled Table VIII—Unitizing (Plastic or other type of casing/unitizing) and Table IX—Interior Can Defects. Finally, removing the Operating Characteristic (OC) curves for on-line sampling and inspection. Other minor non-substantive changes are also proposed.

DATES:

Comments must be received on or before January 19, 2010.

ADDRESSES:

Interested persons are invited to submit written comments or comments on the Internet. Comments must be sent to Lynne Yedinak, Processed Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Stop 0247, Washington, DC 20250-0247; Telephone: (202) 720-9939; FAX: (202) 690-1527; or Internet: http://www.regulations.gov . The current U.S. Standards for Condition of Food Containers is available through the address cited below or by accessing the Internet at: http://www.access.gpo.gov/nara/cfr/waisidx_00/7cfr42_00.html . All comments received will be posed without change, including any personal information provided. All comments should make reference to the date and page number of this issue of the Federal Register and will be made available for public inspection in the above office during regular business hours or can be viewed at: http://www.regulations.gov .

FOR FURTHER INFORMATION CONTACT:

Lynne Yedinak at the above address, Telephone: (202) 720-9939, Fax: (202) 690-1527, or e-mail FQAStaff@ams.usda.gov.

SUPPLEMENTARY INFORMATION:

Executive Order 12866 Regulatory Flexibility Act

This proposed rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory action to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened.

There are approximately 26,361 establishments identified in the 1997 Economic Census as belonging to the North American Industry Classification System under the classification of “food manufacturing” and any number of these establishments could request their product containers be inspected under the provisions of the U.S. Standards for Condition of Food Containers for a number of AMS Program areas. The vast majority of these establishments would qualify as small businesses under the definition provided by the Small Business Administration.

We have examined the economic implications of this proposed rule on small entities. Under the proposed rule, utilization of the U.S. Standards for Condition of Food Containers is voluntary. Small entities would only incur direct costs when purchasers, of their packaged food products, stipulate in their procurement documents that the food containers should conform to the requirements of the U.S. Standards for Condition of Food Containers. Since the standards were previously amended in May 1983, innovations in packaging technologies have provided an increasingly wide variety of acceptable new food containers. These new food containers are not represented by the current standards. According, we believe that this impact will be minimal because the revisions are necessary in order to provide standards that reflect current industry practices. Finally, the changes concerning removal of OC curves and other non-substantive changes will have no adverse impact on small or large entities.

This rule would not impose any additional reporting or recordkeeping requirements on either small or large establishments. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with the Standards.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Executive Order 12988

The rule has been reviewed under Executive Order 12988, Civil Justice Reform. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

Background

The U.S. Standards for Condition of Food Containers (Standards) currently provides sampling procedures and acceptance criteria for the inspection of stationary lots of filled food containers, which includes skip lot sampling and inspection procedures. It also provides on-line sampling and inspection procedures food containers during production.

Stationary lot sampling is the process of randomly selecting sample units from a lot whose production has been completed. This type of lot is usually stored in a warehouse or in some other storage facility and is offered for inspection.

Skip lot sampling is a special procedure for inspecting stationary lots in which only a fraction of the submitted lots are inspected. Skip lot inspection can only be instituted when a certain number of lots of essentially the same quality have been consecutively accepted. To be acceptable under the examination criteria in the standards, lots may contain only a limited number of defects classified as minor, major, and critical. Acceptance criteria are based on sampling plans for different lot sizes and levels of inspection such as normal, reduced, or tightened. Defect tables classify the severity of the defect.

On-line sampling and inspection is a procedure in which subgroups of sample units or individual containers are selected randomly from pre-designated portions of production. The acceptability of these portions of production is determined by inspecting, at the time of sampling, the subgroups which represent these portions. For this type of sampling, only portions of a lot, rather than a whole lot, may be rejected. This helps to quickly pinpoint trouble spots in a production cycle, enabling the producer to make timely corrections, thus reducing the monetary value and total amount of product destroyed as a result of packaging problems.

These standards were developed for the use of Government agencies when requested to certify that filled primary containers or shipping cases, or both, be certified for condition. The standards are permissive, and they may be used in their entirety, or in part, by private parties as well.

AMS proposes to revise the Standards to include: (1) separating Tables I, I-A, II, II-A, III, III-A, and III-B of sampling plans for normal, tightened, and reduced inspection by the type of sampling plan used (single or double), as well as updating the Acceptable Quality Levels (AQLs); (2) updating Tables IV—Metal Containers, V—Glass Containers, VI—Rigid and Semirigid Containers, VII—Flexible Containers (Plastic, Cello, Paper, Textile, etc.), and X—Defects of Label, Marking, or Code (currently Table VIII) to incorporate new defects and revising current defects to reflect the new packaging technologies such as aseptic packaging, metal cans with easy open lids, and plastic rings that hold several containers together; (3) adding new defect tables, Table VIII—Unitizing (Plastic or other type of casing/unitizing) and Table IX—Interior Can Defects; (4) removing the Operating Characteristic (OC) curves; and (5) other minor non-substantive changes to clarify and to determine non-substantive changes.

These revisions to existing tables, addition of new tables, removal of OC curves, and updating language in the container standards would enable the standards to be applicable to most types of food containers and align the standards to reflect current industry practices.

OC Curves found in §§ 42.140, 42.141, 42.142, and 42.143 from Subpart E—Miscellaneous, are proposed to be completely removed. While these curves show the ability of the various sampling plans to distinguish between good and bad lots, it is our experience that the inclusion of these curves are not critical to use of the standards. Furthermore, they are readily available in literature, on the Internet and Standards for sampling plans are also currently available in 7 CFR Part 43.

A sixty-day comment period is provided for all interested persons to comment on this proposal. All written comment received will be considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 42

• Food packaging, reporting and recordkeeping requirements

For the reasons set forth in the preamble, 7 CFR part 42 is proposed to be amended as follows:

PART 42—[AMENDED]

1. The authority citation for part 42 continues to read as follows:

Authority: 7 U.S.C. 1622, 1624.

2. § 42.102 is amended by:

a. Removing the terms Operating Characteristic Curve (OC Curve) and Probability of acceptance, which includes (a) For stationary lot sampling and (b) For On-line Sampling; and

b. Revising the terms Administrator, Lot or inspection lot, Sample size (n), and Stationary lot sampling to read as follows:

3. In § 42.106, paragraph (a)(1) the word “atributed” is revised to read “attributed”.

4. Revise § 42.109 to read as follows:

5. Revise § 42.110 to read as follows:

6. Revise § 42.111 to read as follow:

7. Revise § 42.112 to read as follows:

8. Section 42.113 is revised to read as follows:

Subpart E—[Removed]

9. In part 42, Subpart E—Miscellaneous, consisting of §§ 42.140, 42.141, 42.142, and 42.143, is removed.