United States Standards for Condition of Food Containers

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Agricultural Marketing Service (AMS) is amending the regulations governing the United States (U.S.) Standards for Condition of Food Containers. The revisions to existing tables, removal of operating characteristic (OC) curves and updating language in the standards would enable the standards to be applicable to most types of food containers and align the standards to reflect current industry practices.

DATES:

Effective Date: October 17, 2013.

FOR FURTHER INFORMATION CONTACT:

Lynne Yedinak, Specialty Crops Inspection Division, Fruit and Vegetable Program, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 1536, South Building, Stop 0240, Washington, DC 20250-0240; Telephone: (202) 720-5021, FAX: (202) 690-1527; or email CIDS@ams.usda.gov.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final 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.

Regulatory Flexibility Act and Paperwork Reduction Act

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 final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory action to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Food manufacturers are determined to be small businesses in accordance with the Small Business Size Standards by North American Industry Classification Systems (NAICS) codes in Title 13, Code of Federal Regulations (CFR) 13 CFR part 121. These businesses may have fewer than 500, 750, or 1,000 employees depending on their NAICS code.

There are approximately 22,058 establishments identified in the 2007 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. Only 402 of these establishments would qualify as small businesses under the definition provided by the Small Business Administration.

Under the final rule, utilization of the U.S. Standards for Condition of Food Containers continues to be voluntary. We have examined the economic implications of this final rule on small entities. 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 last amended in May 1983, innovations in packaging technologies have provided an increasingly wide variety of acceptable new food containers. Accordingly, we believe that the economic impact of this final rule will be minimal because the revisions are necessary in order to provide standards that reflect current industry practices. The changes concerning removal of OC curves and other non-substantive changes will have no adverse impact on small or large entities.

The revisions made herein enable the standards to be applicable to most types of food containers and align the standards to reflect current industry practices. With regard to alternatives, this action reflects revisions proposed to the standards as a result of the second proposed rule published in the Federal Register, January 18, 2012 [77 FR 2481].

This rule will not impose any additional reporting or recordkeeping requirements on either small or large establishments under the Paperwork Reduction Act, (44 U.S.C. chapter 35). 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 of 2002 (44 U.S.C. 3601-3606; 3541-3549), 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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not retroactive. 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 for 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, or 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 defects.

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 identify trouble spots in a production cycle quickly, and enables the producer to make timely corrections. This can reduce the corrective action costs and the amount of product destroyed as a result of packaging problems.

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

Revision of the Standards includes:

(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) for these tables

(2) updating Table IV—Metal Containers, (Rigid and Semi-Rigid), Table VI—Glass Containers, Table VIII—Rigid and Semi-Rigid Containers (Corrugated or Solid Fiberboard, Chipboard, Wood, Paperboard Aseptic Cartons, Polymeric Trays, etc.), Table IX—Flexible Containers (Plastic Bags, Cello, Paper, Textile, Laminated Multi-Layer Pouch, Bag, etc.), and Table XI—Defects of Label, Marking, or Code to incorporate new defects and revise existing defects to reflect 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 V—Composite Containers (Semi-Rigid Laminated or Multi-Layer Paperboard Body with Metal, Plastic, or Combination of Metal and Plastic Ends and a Safety Seal Inside the Cap), Table VII—Plastic Containers (Rigid and Semi-Rigid Bottles, Jars, Tubs, Trays, Pails, etc.), and Table XII—Interior Can Defects (a new section 42.114 is added to provide for procedures for evaluating interior container defects)

(4) removing the OC curves

(5) other minor non-substantive changes to clarify the text.

These revisions to existing tables, addition of new tables, removal of OC curves, and updating language in the U.S. Standards for Condition of Food Containers enables 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 removed. This final rule reflects the amendatory language removing these provisions that first appeared in the proposed rule published in the November 19, 2009, Federal Register. While these curves show the ability of the various sampling plans to distinguish between accepted and rejected lots, it is our experience that the inclusion of these curves is not critical to use of the standards. Furthermore, they are readily available in literature and on the Internet. Also, Standards for sampling plans including OC Curves are currently available in 7 CFR Part 43.

Comments

AMS published two proposed rules in the Federal Register in which six comments were received. The first proposed rule was published in the Federal Register on November 19, 2009 [74 FR 59920], with a sixty-day comment period which closed on January 19, 2010. Two comments were received. One commenter provided a comment that was determined to be outside the scope of the rule. Therefore, no changes were made based on this comment. The other commenter supported the proposed rule revision and provided statements regarding § 42.112—Defects of Containers. The commenter stated that while Table IV of § 42.112 has defects for composite cans listed as a subset of the metal can defects, composite cans also exhibit defects listed in Table VI—Rigid and Semi-rigid containers. The commenter proposed a separate table be added for composite cans extracting the composite can defects from Table IV and Table VI. Based on this comment, AMS added a new Table V that contained the information for composite can defects from Table IV and Table VI and removed the composite information in Table IV. The proposed rule was then reissued.

The second proposed rule was published in the Federal Register on January 18, 2012 [77 FR 2481] and provided a comment period of sixty days which closed on March 19, 2012. Four comments were received. Two commenters provided comments that were determined to be outside the scope of the rule. Therefore, no changes were made based on those comments.

The third commenter supported the revision of the proposed rule with several changes. Comments were received regarding: (1) the new proposed paragraph § 42.114—Procedures for Evaluating Interior Container Defects and Table XII—Interior Container Defects, and (2) the proposed modifications to two defects in Table IV—Metal Containers (Rigid and Semi-rigid). Comments received regarding Procedures for Evaluating Interior Container Defects stated that the last four defects in Table XII were vague and not defined. AMS determined the comment had merit and removed major defect 104 and minor defect 204, and revised major defect 105 and minor defect 205 to provide examples of what “other anomaly(ies)” are. The defects were then renumbered. In subsequent discussions, the commenter requested AMS change “Enamel cracked in metal container material not affecting usability” in minor defect 203, Table XII, to “Enamel breakdown in metal affecting usability” as the terms “cracked” and “breakdown” mean the same thing. AMS determined that this had merit and made the change. The commenter also provided comments on § 42.112—Defects of Containers, Table IV—Rigid and Semi-Rigid Containers. The comment concerned major defect 107 for “Metal pop-top: (b) Missing or incomplete score line:” and minor defect 203 for “Flexible pop-top: (b) Short pull tab.” The commenter stated that sometimes product design standards request a partial score for a metal pop-top or a shortened pull tab for a flexible pop-top. The commenter requested that AMS revise the defect descriptions to specify that these will not be considered defects when they are requested in a product specification. AMS determined the comment had merit and, to account for this exception, added the phrase “(not conforming to a relevant product specification)” to major defect 107 and minor defect 203.

The fourth commenter stated that using “Tetra Pak” is a reference to a company and not the actual type of packaging. The commenter recommended that AMS use one of the specific package trademarks or use the term “Tetra Pak cartons.” AMS determined the comment had merit. AMS has revised the package identification from “Tetra Pak” to “Paperboard Aseptic Cartons” to accurately identify all packaging made in a similar manner.

Based on the comments received and information gathered, AMS believes that revising these standards will bring the Standards inline to reflect current industry practices.

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 amended as follows:

PART 42—[Amended]

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

Authority: Secs. 203, 205, 60 Stat. 1087, as amended, 1090, as amended (7 U.S.C. 1622, 1624).

2. Section 42.102 is amended by:

a. Removing the definitions “Lot”, “Operating Characteristic Curve (OC Curve)” and “ Probability of acceptance”.

b. Revising the definitions “Administrator,” “Sample size (n),” and “Stationary lot sampling”

c. Adding the definition “Lot or inspection lot” in alphabetical order.

The revisions and addition read as follows:

3. In § 42.106, paragraph (a)(1), remove the word “attributed” and add in its place the word “attributed”.

4. Revise § 42.109, to read as follows:

5. Revise § 42.110 to read as follows:

6. Revise § 42.111 to read as follows:

7. Section § 42.112 is revised to read as follows:

8. Section 42.113 is revised to read as follows:

9. Add § 42.114 to subpart B to read as follows: