AAM-42-11-00007-E Sale of Sliced Cheese at Farmers' Markets

10/19/11 N.Y. St. Reg. AAM-42-11-00007-E

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 42

October 19, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

EMERGENCY RULE MAKING

 

I.D No. AAM-42-11-00007-E

Filing No. 864

Filing Date. Sept. 29, 2011

Effective Date. Sept. 29, 2011

Sale of Sliced Cheese at Farmers' Markets

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Relettering of section 276.4(d), (e) to section 276.4(e), (f); and addition of new section 276.4(d) to Title 1 NYCRR.

Statutory authority:

Agriculture and Markets Law, sections 16, 18, 214-b, 251-z-4 and 251-z-9

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The rule exempts persons who slice cheese at farmers' markets from the requirement to obtain a food processing license, as set forth in Agriculture and Markets Law Article 20-C, subject to specified food safety conditions. It is necessary to adopt the rule as an emergency measure in order to eliminate a financial and regulatory burden upon sellers of cheese in farmers' markets, benefit farmers' markets patrons who wish to purchase cheese that has not been pre-packaged, expand local food purchasing options during the farmers' market season, and spur additional and needed economic activity in the State.

Subject:

Sale of sliced cheese at farmers' markets.

Purpose:

To exempt persons who slice cheese at a farmers' market for sale to consumers from having to obtain a food processing license.

Text of emergency rule:

Subdivisions (d) and (e) of section 276.4 of 1 NYCRR are relettered to be subdivisions (e) and (f), respectively.

Section 276.4 of 1 NYCRR is amended by adding thereto a new subdivision (d), to read as follows:

(d) Slicing and packaging of cheese at farmers' markets.

(1) Definitions. As used this subdivision:

(i) person means a natural person, partnership, corporation, association, limited liability company or other legal entity that slices cheese that it has manufactured in its own milk plant.

(ii) farmers' market means a premises as defined in Agriculture and Markets Law section 260(1). An open-air farmers' market is a farmers' market that does not operate in or under a permanent structure.

(2) Any person who slices and packages cheese for sale to consumers at a farmers' market shall be exempt from the licensing requirements of Article 20-C of the Agriculture and Markets Law, provided that:

(i) the premises where the cheese is sliced and packaged is maintained in a sanitary condition and in compliance with the provisions of Part 271 of this Title, except that sections 271-6.1, 271-6.6, 271-6.12 through 271-6.17, 271-6.24, 271-7.1 through 271-7.14, and 271-7.16 through 271-7.29 shall not apply to such premises located in an open-air farmers' market; and

(ii) no other food processing operations for which licensing under Article 20-C of the Agriculture and Markets Law is required is being conducted at the premises; and

(iii) the standardized name of each cheese offered for sale if the cheese meets a standard of identity, or the common or usual name of each cheese offered for sale if the cheese does not meet a standard of identity, is

a. affixed or in close proximity to the slice of cheese to be sold to consumers; or

b. affixed or in close proximity to the "wheel" of cheese from which a slice thereof is obtained, and the consumer is accurately and adequately informed as to the identity of the "wheel" of cheese from which such slice was obtained.

(iv) the price per pound of each cheese offered for sale is prominently displayed so as to be readily observable by consumers, and the price and weight of each slice of cheese sold or offered for sale to consumers is prominently displayed or is clearly disclosed; and

(v) the cheese and each slice thereof is transported, maintained, held, handled, processed, and packaged under sanitary conditions.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire December 27, 2011.

Text of rule and any required statements and analyses may be obtained from:

Stephen D. Stich, Director, Food Safety and Inspection, New York State Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory authority:

Section 16(1) of the Agriculture and Markets Law (AML) authorizes the Commissioner of Agriculture and Markets (Commissioner) to execute and carry into effect the laws of the State and the rules of the Department of Agriculture and Markets (Department), relative to, among other things, the production, transportation, storage, marketing and distribution of food.

AML Section 18(2) authorizes the Commissioner to enact, amend and repeal necessary rules to provide for carrying into effect the provisions of this chapter and of the laws of the State with respect to food.

AML Section 18(6) authorizes the Commissioner to provide generally for the exercise of the powers and performances of the duties of the Department as prescribed in the Law and the laws of the State and for the enforcement of their provisions and the provisions of the rules enacted as therein provided.

AML Section 214-b authorizes the Commissioner to promulgate regulations for the efficient enforcement of AML Article 17 relating to the adulteration, packing and branding of food and food products.

AML Section 251-z-4 authorizes the Commissioner to provide by regulation exemption from licensing of small food processing establishments when he finds that such exemptions would avoid unnecessary regulation and assist in the administration of Article 20-C (Licensing and Food Processing Establishments) without impairing its purposes.

AML Section 251-z-9 authorizes the Commissioner to promulgate and issue rules and regulations to implement the provisions of Article 20-C of the AML.

2. Legislative objectives:

AML Article 20-C generally requires each establishment that processes food to obtain a food processing license (license). In enacting Article 20-C, the Legislature intended to assure that foods processed for sale are safe for human consumption, and that the establishments that process food are maintained under sanitary conditions. The Legislature also provided, however, that the Commissioner of Agriculture and Markets could exempt certain small food processing establishments from having to obtain licenses if the public health would not be jeopardized and if other statutory objectives would be promoted.

The Commissioner has, on an emergency basis, adopted a rule that exempts cheese makers who slice and package cheese for sale to consumers at farmers' markets from the requirement that they obtain licenses. The Commissioner has determined that the rule would not jeopardize the public health because cheese makers would, pursuant to the rule, be required to comply with all appropriate food safety requirements set forth in 1 NYCRR Part 271. The Commissioner also determined that exempting cheese makers from the requirement to obtain food processing licenses would be consistent with the Legislature's objectives of promoting farmers' markets (AML Article 22) and promoting and developing the agricultural resources of the State (AML section 16(2), AML Article 25).

3. Needs and benefits:

The proposed rule is needed by and will benefit New York's cheese industry, farmers' markets, and New York consumers. The proposal would eliminate a regulatory burden upon cheese makers by exempting them from having to obtain licenses and having to pay the biennial license fee of $400.00. Cheese makers will, therefore, be more likely to offer their cheese for sale at farmers' markets, which will make such cheese more accessible and could result in an increase in sales and an increase in employment opportunities in the cheese industry specifically and in the dairy industry in general.

The proposed rule would also benefit farmers' markets. Farmers' markets have become increasingly popular and cheese is one of the most popular items offered for sale at such markets. Because the proposed rule will make it more likely that cheese makers will offer their cheese for sale at such venues, the proposed rule would make it more likely that additional consumers will visit farmers' markets and spend their food dollars there.

Finally, the proposed rule would benefit consumers who want to buy non-prepackaged cheese. Many consumers prefer cheese that has been cut "fresh from the wheel," and this purchasing option will likely be more available to them.

4. Costs:

The proposed rule would impose no costs upon regulated parties, the Department, or upon state or local governments to implement and to continue to comply therewith.

5. Paperwork:

None.

6. Local government mandates:

None.

7. Duplication:

There are no laws, rules or other legal requirements that duplicate, overlap, or conflict with the rule.

8. Alternatives:

The Department considered several alternatives during the development of this proposal. The Department considered not exempting cheese makers who slice and package cheese for sale at farmers' markets from having to obtain licenses. The Department rejected this alternative because it felt that its duty to protect the public health could be met even if cheese makers were relieved of the regulatory burden of having to be licensed.

The Department also considered not requiring cheese makers to comply with specific applicable provisions of sanitary requirements for retail food stores set forth in 1 NYCRR Part 271 but, rather, requiring them to, generally, operate "under sanitary conditions". The Department rejected this alternative because it would not have given adequate notice to cheese makers as to the specific sanitation practices that they must follow, to ensure that the cheese that they slice and package for sale is safe for human consumption.

9. Federal standards:

There are no federal standards that relate or refer to the proposed rule.

10. Compliance schedule:

Since the proposed rule removes a regulatory burden upon cheese makers, there is no compliance schedule.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed rule, which has been adopted on an emergency basis, exempts cheese makers who slice and package their own cheese for sale at farmers' markets (cheese makers) from the requirement that they obtain food processing licenses (licenses) as otherwise required pursuant to Agriculture and Markets Law (AML) Article 20-C.

The proposed rule will relieve a regulatory burden upon cheese makers while benefiting farmers' market patrons who wish to purchase non-prepackaged cheese. Furthermore, the proposed rule could spur additional opportunities for cheese makers, thereby benefiting the State's dairy industry as a whole.

There are approximately eighty cheese makers in the state who meet the definition of "cheese makers," set forth above. All of these cheese makers are small businesses who will be affected by the proposed rule. No local governments will be affected by the proposal.

2. Compliance requirements:

The proposed rule relieves a regulatory burden upon cheese makers; no compliance requirements have, therefore, been imposed.

3. Professional services:

None.

4. Compliance costs:

None.

5. Economic and technological feasibility:

The proposed rule allows but does not require cheese makers to slice and package cheese offered for sale at farmers' markets without having to obtain licenses. As such, the proposed rule does not require cheese makers to purchase knives or any other equipment that can be used to slice cheese.

There are no economic or technological issues that will be encountered by local governments because the proposed rule does not affect them.

6. Minimizing adverse impacts:

The Department anticipates that the proposed rule will have no adverse impact upon regulated parties.

7. Small business and local government participation:

On June 30, 2011, Department personnel conducted an outreach meeting with the President of the New York State Farmstead and Artisan Cheese Makers' Guild, an association that has, as part of its membership, a large number of the State's cheese makers. Department personnel informed the representative as to the substance of the proposal and requested input. The representative approved the intent of the proposed rule and made comments which were considered in the drafting of the proposal.

Because this proposed rule has no impact upon local governments, the Department did not conduct outreach with such entities.

Rural Area Flexibility Analysis

The Commissioner of Agriculture and Markets has adopted, on an emergency basis, a rule exempting cheese makers who slice and package their own cheese for sale at farmers' markets from the requirement that they obtain food processing licenses, otherwise required pursuant to Agriculture and Markets Law Article 20-C. Because this proposal does not impose an adverse impact upon rural areas and because it imposes no reporting, recordkeeping or other compliance requirements on public or private entities in rural areas, no rural area flexibility has been prepared in connection with the proposed rule, pursuant to SAPA section 202-bb(4)(a).

Job Impact Statement

The proposed rule will exempt persons who slice cheese at farmers' markets for sale to consumers from having to obtain food processing licenses, pursuant to Agriculture and Markets Law Article 20-C. The rule will eliminate a regulatory burden upon persons who slice cheese for sale to consumers at farmers' markets and, furthermore, will benefit farmers' markets patrons who wish to purchase cheese that has not been pre-packaged.

The proposed rule is expected to have a positive impact upon jobs and employment opportunities in the State's cheese industry and at its farmers' markets.