B-141088, DEC. 8, 1959

B-141088: Dec 8, 1959

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SECTION 201 (A) OF PUBLIC LAW 86-341 IS AS FOLLOWS: "IN ORDER TO INSURE THE NUTRITIONAL VALUE OF CORNMEAL. WHITE FLOUR WHEN SUCH FOODS ARE MADE AVAILABLE FOR DISTRIBUTION UNDER SECTION 416 (3) OF THE AGRICULTURAL ACT OF 1949 OR FOR DISTRIBUTION TO SCHOOLS UNDER THE NATIONAL SCHOOL LUNCH ACT OR ANY OTHER ACT. AS THE WEIGHT OF A SANITARY CONTAINER FOR THE PACKAGING OF 50 POUNDS OF THE DESIGNATED FOODS IS COMPARATIVELY INSIGNIFICANT (APPROXIMATELY 5 OUNCES FOR 50 POUNDS OF FLOUR) AND IT IS THE ESTABLISHED PRACTICE OF THE MILLING INDUSTRY TO PACKAGE AND SELL ON A NET WEIGHT BASIS. DOUBT EXISTS THAT THE WEIGHT PROVISION OF SECTION 201 (A) WAS INTENDED TO PRECLUDE THE USE OF STANDARD 50 POUND NET WEIGHT PACKAGES.

B-141088, DEC. 8, 1959

TO THE SECRETARY OF AGRICULTURE:

IN A LETTER OF OCTOBER 23, 1959, THE HONORABLE MARVIN L. MCLAIN, ASSISTANT SECRETARY OF THE DEPARTMENT OF AGRICULTURE, SUBMITTED FOR OUT CONSIDERATION THE QUESTION WHETHER THE DEPARTMENT OF AGRICULTURE, IN THE DISTRIBUTION OF CORNMEAL, GRITS AND WHITE FLOUR TO SCHOOLS PURSUANT TO THE NATIONAL SCHOOL LUNCH ACT OR OTHER ACT, MAY MAKE SUCH FOODS AVAILABLE IN PACKAGES OF A NET WEIGHT OF 50 POUNDS. THE QUESTION ARISES BY VIRTUE OF A PROVISION OF SECTION 201 (A), PUBLIC LAW 86-341, APPROVED SEPTEMBER 21, 1959, 73 STAT. 610, ESTABLISHING A MAXIMUM PACKAGE WEIGHT FOR THE DISTRIBUTION OF SUCH FOODS.

SECTION 201 (A) OF PUBLIC LAW 86-341 IS AS FOLLOWS:

"IN ORDER TO INSURE THE NUTRITIONAL VALUE OF CORNMEAL, GRITS, AND WHITE FLOUR WHEN SUCH FOODS ARE MADE AVAILABLE FOR DISTRIBUTION UNDER SECTION 416 (3) OF THE AGRICULTURAL ACT OF 1949 OR FOR DISTRIBUTION TO SCHOOLS UNDER THE NATIONAL SCHOOL LUNCH ACT OR ANY OTHER ACT, SUCH FOODS SHALL BE ENRICHED SO AS TO MEET THE STANDARDS FOR ENRICHED CORNMEAL, ENRICHED CORN GRITS, OR ENRICHED FLOUR, AS THE CASE MAY BE, PRESCRIBED IN REGULATIONS PROMULGATED UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT; AND IN ORDER TO PROTECT THE NUTRITIONAL VALUE AND SANITARY QUALITY OF SUCH ENRICHED FOODS DURING TRANSPORTATION AND STORAGE SUCH FOODS SHALL BE PACKAGED IN SANITARY CONTAINERS. FOR CONVENIENCE AND EASE IN HANDLING, THE WEIGHT OF ANY SANITARY CONTAINER WHEN FILLED SHALL NOT EXCEED FIFTY POUNDS.'

READ BY ITSELF, THE PROVISION THAT THE WEIGHT OF ANY SANITARY CONTAINER WHEN FILLED SHALL NOT EXCEED 50 POUNDS APPEARS TO ESTABLISH A GROSS WEIGHT MAXIMUM. BUT AS THE WEIGHT OF A SANITARY CONTAINER FOR THE PACKAGING OF 50 POUNDS OF THE DESIGNATED FOODS IS COMPARATIVELY INSIGNIFICANT (APPROXIMATELY 5 OUNCES FOR 50 POUNDS OF FLOUR) AND IT IS THE ESTABLISHED PRACTICE OF THE MILLING INDUSTRY TO PACKAGE AND SELL ON A NET WEIGHT BASIS, DOUBT EXISTS THAT THE WEIGHT PROVISION OF SECTION 201 (A) WAS INTENDED TO PRECLUDE THE USE OF STANDARD 50 POUND NET WEIGHT PACKAGES, WITH THE RESULTANT INCREASE IN COST OF DISTRIBUTION BY THE USE OF SMALLER STANDARD PACKAGES OR NONSTANDARD PACKAGES.

THE PROVISIONS OF SECTION 201 WERE A SENATE AMENDMENT TO THE BILL, H.R. 8609, WHICH BECAME PUBLIC LAW 86-341. AS ORIGINALLY PROPOSED BY SENATOR JOHNSTON OF SOUTH CAROLINA AND ADOPTED BY THE SENATE, THE PROVISIONS REFERRED TO WHITE RICE (LATER DELETED BY THE CONFERENCE COMMITTEE OF THE TWO HOUSES), AND CORNMEAL, GRITS AND WHITE FLOUR. THE CONGRESSIONAL RECORD OF SEPTEMBER 7, 1959, P. 16825, DISCLOSES THE FOLLOWING DISCUSSION OF THE AMENDMENT:

"MR. JOHNSTON OF SOUTH CAROLINA. MR. PRESIDENT, THIS AMENDMENT WOULD REQUIRE CORN MEAL, GRITS, WHITE RICE, AND WHITE FLOUR DISTRIBUTED PURSUANT TO SECTION 416 OF THE AGRICULTURAL ACT OF 1941 OR TO SCHOOLS TO BE ENRICHED SO AS TO MEET THE STANDARDS FOR ENRICHMENT PRESCRIBED BY THE FOOD AND DRUG ADMINISTRATION AND TO BE PACKAGED IN SANITARY CONTAINERS NOT EXCEEDING 50 POUNDS.

"THE AMENDMENT IS A SOMEWHAT EXPANDED VERSION OF S. 651, WHICH I INTRODUCED ON JANUARY 23. HEARINGS WERE HELD ON S. 651 AND OTHER BILLS BY THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY ON APRIL 24.

"THE 100-POUND BAGS NOW USED FOR RICE DONATED TO SCHOOLS ARE TOO HEAVY FOR THE WOMEN WHO PREPARE THE SCHOOL LUNCHES TO HANDLE. THEY TEAR AND ADMIT DIRT AND MOISTURE, BOTH IN TRANSPORTATION AND IN WINTER, AND THEY MUST BE DRAGGED ALONG THE FLOOR.

"MR. SCHOEPPEL. AS I UNDERSTAND, THERE WOULD BE NO CHANGE, EXCEPT TO MAKE CERTAIN ADDITIONS TO THE ENRICHMENT PROGRAM, AND TO PROVIDE FOR MORE PRACTICAL PACKAGING, AS THE SENATOR POINTED OUT. IS THAT THE CASE?

"MR. JOHNSTON OF SOUTH CAROLINA. THAT IS TRUE. THIS IS NOT A NEW PROGRAM. WE ALREADY ENRICH ABOUT 80 PERCENT OF THE FOODS WE FURNISH UNDER THE SCHOOL LUNCH PROGRAM.'

FROM THE ABOVE AND THE HEARINGS ON S. 651 WHEREIN THE PROVISIONS OF THE AMENDMENT WHICH BECAME SECTION 201 WERE PROPOSED TO BE ADDED TO THE NATIONAL SCHOOL LUNCH ACT, IT APPEARS THE AMENDMENT WAS DIRECTED PRIMARILY AT THE DEPARTMENT'S PRACTICE OF MAKING AVAILABLE FOR DISTRIBUTION TO SCHOOLS UNENRICHED WHITE RICE, WHICH WAS PACKED IN 100 POUND BAGS. UNDERSTAND CORNMEAL AND FLOUR, IN AN ENRICHED FORM, ARE DISTRIBUTED TO SCHOOLS IN BAGS OF 50 POUNDS NET WEIGHT, AND THAT NO DISTRIBUTION IS MADE OF GRITS.

THE SITUATION THE WEIGHT PROVISION OF SECTION 201 WAS INTENDED TO CORRECT WAS THE HANDLING BY SCHOOL LUNCH PERSONNEL OF FOOD PACKAGES WEIGHING 100 POUNDS. THE LEGISLATIVE HISTORY OF THE PROVISION DOES NOT DISCLOSE SPECIFIC CONSIDERATION OF THE QUESTION OF GROSS OR NET WEIGHT--- ATTRIBUTABLE PERHAPS TO THE INSIGNIFICANT WEIGHT OF THE CONTAINERS INVOLVED. AND AS FOOD COMMODITY PACKAGES ARE USUALLY REFERRED TO IN TERMS OF NET WEIGHT, IGNORING THE WEIGHT OF THE CONTAINER, WE DO NOT VIEW THE WEIGHT PROVISION OF SECTION 201 AS CLEARLY ESTABLISHING A GROSS WEIGHT LIMITATION. RATHER, WE FEEL WARRANTED IN CONCURRING IN THE POSITION TAKEN BY THE ASSISTANT SECRETARY THAT THE PACKAGING OF THE DESIGNATED FOODS IN SANITARY CONTAINERS ON A NOT TO EXCEED 50 POUNDS NET WEIGHT BASIS, WITH A GROSS WEIGHT SLIGHTLY IN EXCESS OF 50 POUNDS, WOULD BE IN KEEPING WITH THE PURPOSE AND SPIRIT OF THE PROVISION, AND THEREFORE NOT PRECLUDED.