Evaluation based solely on factors and subfactors specified in solicitation Comptroller General - Key Excerpts Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions.
Argued March 15, Decided November 6, Lake and Michael S. Dubeck and John S. Topol and Richard F. This case arises on a petition for review of a Final Decision and Order of the Commissioner of Food and Drugs  in which he ruled that a substance used to fabricate unbreakable beverage containers, acrylonitrile copolymer, is a "food additive" within the meaning of section s of the Federal Food, Drug, and Cosmetic Act the Act.
The FDA determination that acrylonitrile copolymers used in beverage containers are "food additives" within the statute is based on the finding that such containers invariably retain a residual level of acrylonitrile monomer that has failed to polymerize completely during the manufacturing process Health and safety in vistron that will migrate from the wall of the container into the beverage under the conditions of intended use.
Although the administrative proceedings focused on beverage containers with a residual acrylonitrile monomer RAN level equal to or greater than 3. Subsequently, the Commissioner determined that, because of this putative migration, acrylonitrile copolymer was a "food additive" within the statute, and, on February 12,he published a regulation prescribing the conditions under which the chemical might be used safely in beverage containers: RAN levels in the wall of the container were limited to 80 parts per million ppmand acceptable migration of acrylonitrile monomer into the food was set at ppb parts per billion.
The Commissioner announced that he would lower the acceptable migration threshold for nonbeverage containers to 50 ppb, and would withdraw approval entirely for acrylonitrile beverage containers, on the assumption that no such container could satisfy the 50 ppb migration limitation.
The court stayed the administrative action on March 18,  and ordered that the required hearing be completed within 60 days. Subsequently, on a joint motion of the parties, the time limitation was extended by Health and safety in vistron.
At the administrative hearing, petitioners introduced results from tests on a newly developed acrylonitrile beverage container having a RAN level of approximately 3.
Tests on the container, employing a detection method sensitive to 10 ppb, detected no migration of acrylonitrile monomer. Nevertheless, the administrative law judge found that acrylonitrile copolymer was a "food additive," since migration had been detected from beverage containers composed of the same chemical compounds, though with higher RAN levels than those present in the "new" container.
This case brings into court the second law of thermodynamics, which C. Snow used as a paradigm of technical information well understood by all scientists and practically no persons of the culture of humanism and letters.
The Commissioner's Final Decision, which upheld the ALJ's determination, is unclear on whether and to what extent reliance was placed on this "diffusion principle" rather than on a meaningful projection from reliable data.
At one point in the Final Decision the Commissioner stated: Elsewhere, the Commissioner stated that he was able to make a finding of migration based on a projection from actual data — on the assumption that a roughly linear relationship as a function of time and temperature existed between the RAN levels in a container and the concentration of acrylonitrile that would migrate into a test fluid.
On this premise, though migration from the 3. As it was presented to us, the Commissioner had made a projection of migration from 3. One of petitioners' experts put it that the relationship might not be linear at very low RAN levels; but this was dismissed by the Commissioner as "speculative.
Our own study showed the possibility of using experimental data to check the FDA's projection analysis. The FDA revealed that a projection of migration from low RAN containers had in fact been made for test conditions of prolonged duration and above-normal temperature. Under such conditions migration was projected in concentrations greater than 10 ppb, the threshold of detectability at the time of the Final Decision.
The responses to our inquiry have revealed the probable existence of data unavailable to counsel during the administrative proceedings that bear importantly upon the assumptions made by the Commissioner in reaching his findings and conclusions.
This discovery buttressed our earlier conclusion that the Commissioner did not have sufficient support for his decision to apply the "food additive" definition in this case. In light of the inadequacy of the agency's inquiry and in light of our view that the Commissioner has a greater measure of discretion in applying the statutory definitions of "food additive" than he appears to have thought, we remand this proceeding for further consideration.
III The proceedings at hand are dramatic testimony to the rapid advance of scientific knowledge in our society. At the time of the administrative proceedings, the lowest concentration of acrylonitrile in a test fluid that could be detected with an acceptable degree of confidence was 10 ppb.
There are now analytical techniques available that can detect acrylonitrile concentration of 0. In his post-argument testimony, Monsanto's expert claims, on the basis of such "hard" data, that the hypothesis which the Commissioner labeled as "speculative" may accurately describe the migration characteristics of containers with very low RAN levels, to wit, that in such containers the acrylonitrile monomer is so firmly affixed within the structure of the copolymer that no migration will occur under the conditions of intended use.
The actual issuance of a regulation approving the production of a beverage container with an acceptable RAN level would presumably require both a container that had been developed  and the appropriate petition. However,  the Commissioner would have latitude to issue a statement of policy based upon the results of the proceeding or remand that would specify what in his review was an acceptable RAN level.
This would serve a technology-forcing objective.
FDA points out that the material submitted in response to this court's inquiry affirmatively supports the validity of the Commissioner's findings and conclusions. As a general rule, courts defer to administrative agency orders closing the record and terminating proceedings.Bracco has been, and continues to be, the sole provider of prefilled syringes for the Medrad EnVision CT™, Vistron CT ® and MCT Plus™ injection systems.
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Skip navigation Sign in. Introduction to Basic Health and Safety - . Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions.