AAM-41-10-00001-P Applicability of Requirements Relating to the Production, Processing and Manufacture of Milk and Milk Products  

  • 10/13/10 N.Y. St. Reg. AAM-41-10-00001-P
    NEW YORK STATE REGISTER
    VOLUME XXXII, ISSUE 41
    October 13, 2010
    RULE MAKING ACTIVITIES
    DEPARTMENT OF AGRICULTURE AND MARKETS
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. AAM-41-10-00001-P
    Applicability of Requirements Relating to the Production, Processing and Manufacture of Milk and Milk Products
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    This is a consensus rule making to repeal section 2.1 and add new section 2.1 to Title 1 NYCRR.
    Statutory authority:
    Agriculture and Markets Law, sections 16, 18, 46, 46-a, 50-k, 71-a, 71-n and 214-b
    Subject:
    Applicability of requirements relating to the production, processing and manufacture of milk and milk products.
    Purpose:
    To require certain producers, processors and manufacturers of milk and milk products to comply with the current PMO.
    Text of proposed rule:
    Part 2 of 1 NYCRR is amended by repealing section 2.1 and adding a new section 2.1, to read as follows:
    § 2.1. Applicability
    (a) The provisions of this Part shall apply to dairy farms, dairy farmers and raw milk producers, and shall apply to milk plants and persons who operate milk plants, that do not have a sanitation compliance rating of ninety or better, as set forth in the latest Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers List. The provisions of this Part shall also apply to milk plants and persons who operate milk plants that manufacture frozen desserts and/or melloream.
    (b)(i) The sanitation provisions of this Part shall not apply to dairy farms or dairy farmers, or to milk plants and persons who operate milk plants, that have a sanitation compliance rating of ninety or better, as set forth in the latest Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers List ("IMS List"), except as set forth in paragraph (ii) herein. Dairy farms and dairy farmers, and milk plants and persons who operate milk plants, that have such a sanitation compliance rating shall comply with the sanitation requirements set forth in the Grade A Pasteurized Milk Ordinance, 2009 Revision, published by the United States Department of Health and Human Services, Washington, D.C. ("PMO") except to the extent that any provision of the PMO is in conflict with a provision of state and/or federal law and except as provided in paragraph (ii) herein. A copy of the PMO is available for public inspection at the Division of Milk Control and Dairy Services, Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, and at the Department of State, 41 State Street, Albany, New York 11231.
    (ii)(a) The provisions of sections 2.3; 2.4; 2.5(a); 2.6(b); 2.7(b), (d)(1), (d)(2) and (d)(3); 2.27(e); 2.34(i); 2.38(g); 2.48(a)(4); 2.64, and 2.65 of this Part shall apply to dairy farms and dairy farmers, and to milk plants and persons who operate milk plants, that have a sanitation compliance rating of ninety or better, as set forth in the latest IMS List, and such provisions shall supersede any requirements set forth in the PMO that are to the contrary or are not otherwise identical.
    (c) Every term used in subdivision (b) of this section that is defined in the Grade A Pasteurized Milk Ordinance, 2009 edition, shall have the meaning ascribed to such term therein.
    (d) The provisions of this Part shall preempt any local law, ordinance, rule or regulation enacted by any city, village, town, county, or by any department, agency, board, office or other division thereof, whether enacted prior to or after the effective date of this Part, to the extent that any such enactment is different from or inconsistent with the provisions of this Part.
    Text of proposed rule and any required statements and analyses may be obtained from:
    Casey McCue, Division of Milk Control & Dairy Services, NYS Dept. of Agriculture and Markets, 10B Airline Drive, Albany, NY 12235, (518) 457-8870, email: Casey.McCue@agmkt.state.ny.us
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    45 days after publication of this notice.
    Consensus Rule Making Determination
    The proposed rule will amend 1 NYCRR Part 2 to incorporate by reference the 2009 edition of the Grade A Pasteurized Milk Ordinance ("the 2009 PMO") and make the provisions thereof applicable to producers, processors and manufacturers of "Grade A" milk and milk products that have a sanitation compliance rating of ninety or better, as set forth in the latest Sanitation Compliance and Enforcement Ratings of the Interstate Milk Shippers Conference ("IMSC"), and who may, therefore, ship such foods in interstate commerce. The proposed rule will also require such producers, processors and manufacturers to continue to comply with a limited number or provisions presently in 1 NYCRR Part 2. Finally, the proposed rule provides that the provisions of the 2009 PMO will not apply to those producers, processors and manufacturers of milk and milk products who do not have such a rating and may not, with certain exceptions, ship such foods in interstate commerce. Instead, such businesses will be required to continue to comply with the provisions of 1 NYCRR Part 2, as presently set forth.
    The proposed rule is non-controversial. The 2009 PMO is a publication of the Food and Drug Administration ("FDA") of the United States Department of Health and Human Services and contains sanitation guidelines for the production of raw milk that will be pasteurized, the processing of such milk for drinking, and the manufacture of milk products such as cottage cheese and yogurt. Pursuant to an agreement between the states, each state causes inspections to be made of the premises of each producer, processor and manufacturer of "Grade A" milk and milk products, located within its borders, that wishes to ship such foods in interstate commerce. After an inspection is conducted, the inspected business is given a "rating" that reflects its adherence to the sanitation guidelines set forth in the 2009 PMO. The states have agreed that no producer, processor or manufacturer of "Grade A" milk and milk products may ship such foods in interstate commerce unless and until it has received a sanitation compliance rating of ninety or better, indicating that it is in substantial compliance with such sanitation guidelines. As a result of this agreement between the states, every producer, processor and manufacturer of "Grade A" milk and milk products located in New York that ships such foods in interstate commerce must, and already does, have a sanitation compliance rating of ninety or better, indicating that it is in substantial compliance with the provisions of the 2009 PMO.
    Based upon the preceding, the proposed rule will not have an adverse impact upon New York's producers, processors and manufacturers of "Grade A" milk and milk products because those businesses that ship such foods in interstate commerce are already required to be in substantial compliance with the 2009 PMO (as well as with the limited number of provisions of 1 NYCRR Part 2 that will continue to apply to them). Those producers, processors and manufacturers that either do not ship such foods in interstate commerce or ship non-Grade A milk and/or milk products in interstate commerce will not be required, pursuant to the terms of such proposed rule, to comply with the 2009 PMO, but, rather, will be required to continue to comply with the provisions of 1 NYCRR Part 2.
    Not only will the proposed rule have no adverse impact upon New York's producers, processors and manufacturers of "Grade A" milk and milk products, but such businesses will favor adoption of such proposed rule because the FDA has indicated that New York's ability to give "ratings" to such businesses will be jeopardized unless it adopts the 2009 PMO, which could, in turn, cause such businesses to no longer be able to ship such foods in interstate commerce.
    For the preceding reasons, the proposed rule is non-controversial and is a consensus rule, as defined in State Administrative Procedure Act section 102(11).
    Job Impact Statement
    The proposed rule will not have an adverse impact on jobs or on employment opportunities.
    The proposed rule will amend 1 NYCRR Part 2 to incorporate by reference the 2009 edition of the Grade A Pasteurized Milk Ordinance ("the 2009 PMO") and make the provisions thereof applicable to producers, processors and manufacturers of "Grade A" milk and milk products, located in New York, that have a sanitation compliance rating of ninety or better, as set forth in the latest Sanitation and Compliance Enforcement Ratings of the Interstate Milk Shippers Conference ("IMSC"), and that may, therefore, ship such foods in interstate commerce. Such producers, processors and manufacturers will also be required to continue to comply with a limited number of provisions contained in 1 NYCRR Part 2, notwithstanding there being contrary or different requirements set forth in the PMO. Those producers, processors and manufacturers of milk and milk products that do not have such a sanitation compliance rating are not allowed, with certain exceptions, to ship such foods in interstate commerce; and such entities will not be required to comply with the provisions of the 2009 PMO but will, rather, have to continue to comply with the provisions of 1 NYCRR Part 2, as presently set forth.
    Producers, processors and manufacturers of "Grade A" milk and milk products that have such a sanitation compliance rating are already required to comply with the provisions of 1 NYCRR Part 2, and requiring them to continue to adhere to certain provisions thereof places no additional requirements upon them. Furthermore, such producers, processors and manufacturers are also already required to comply with the provisions set forth in the 2009 PMO in order to ship such foods in interstate commerce because all fifty states have agreed, as parties to the IMSC, not to accept any "Grade A" milk or milk products, produced, processed or manufactured in another state that have not been produced, processed or manufactured in substantial compliance with the 2009 PMO. Here, too, the proposed rule places no additional requirements upon such producers, processors and manufacturers, and, as such, the proposed rule will have no adverse impact upon jobs or employment opportunities.

Document Information

Rules:
1 NYCRR 2.1. Applicability