AAM-16-13-00003-P Standard of Identity and Grades of Maple Syrup

4/17/13 N.Y. St. Reg. AAM-16-13-00003-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 16

April 17, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. AAM-16-13-00003-P

Standard of Identity and Grades of Maple Syrup

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

Proposed Action:

Repeal of Part 175 and addition of Part 270 to Title 1 NYCRR. This rule was previously proposed as a consensus rule making under I.D. No. AAM-52-12-00008-P.

Statutory authority:

Agriculture and Markets Law, sections 16, 18, 160-u, 203 and 214-b

Subject:

Standard of identity and grades of maple syrup.

Purpose:

To ensure that grades of maple syrup meet appropriate compositional requirements to promote public confidence and fair dealing.

Public hearing(s) will be held at:

11:00 a.m., June 19, 2013 at Department of Agriculture and Markets, 10B Airline Dr., Albany, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Text of proposed rule:

Part 175 of 1 NYCRR is repealed.

1 NYCRR is amended by adding thereto a new Part 270, to read as follows:

Part 270. Maple Syrup

Section 270.1 Maple Syrup: identities; label statements

(a) Definitions: For the purpose of this section, the following terms shall have the following meanings, unless the context clearly indicates otherwise:

1. Light transmittance means the fraction of incident light at a specified wavelength that passes through a representative sample of a particular sub-grade of Grade A maple syrup.

2. Soluble solids, expressed as a percentage, means the proportion of maple sap solids in the applicable solvent.

3. Tc means the percentage of light transmission through maple syrup, measurable by a spectrophotometer, using matched square optical cells having a 10-millimeter light path at a wavelength of 560 nanometers, the color values being expressed in percent of light transmission as compared to A.R. Glycerol fixed at 100% transmission.

(b) Standards of identity.

1. Maple syrup is the liquid made by the evaporation of pure sap or sweet water obtained by tapping a maple tree. Maple syrup contains minimum soluble solids of 66.0% and maximum soluble solids of 68.9%. Maple syrup includes, and is either, Grade A Maple Syrup or Processing Grade Maple Syrup, as defined in paragraphs (2) and (3) of this subdivision.

2. Grade A maple syrup means maple syrup that is not fermented, is not turbid, and contains or has no objectionable odors, off-flavors or sediment. Grade A maple syrup must fall within one of the color and taste sub-grades of Grade A maple syrup set forth in subparagraphs (a), (b), (c), or (d) of this paragraph.

a. Grade A golden color and delicate taste maple syrup has a uniform light golden color, a delicate to mild taste, and a light transmittance of 75% Tc or more.

b. Grade A amber color and rich taste maple syrup has a uniform amber color, a rich or full-bodied taste, and a light transmittance of 50% - 74.9% Tc.

c. Grade A dark color and robust taste maple syrup has a uniform dark color, a robust or strong taste, and a light transmittance of 25% - 49.9% Tc.

d. Grade A very dark and strong taste maple syrup has a uniform very dark color, a very strong taste, and a light transmittance of less than 25% Tc.

3. Processing Grade Maple Syrup means maple syrup that does not meet the requirements for Grade A maple syrup set forth in paragraph (2) of this subdivision. Processing Grade Maple Syrup may not be sold, offered for sale or distributed in retail food stores or directly to consumers for household use.

(c) Nomenclature label statement.

1. The name of the food defined in paragraph 2 of subdivision (b) of this section is “Grade A Maple Syrup”. The name “Grade A Maple Syrup” must conspicuously appear on the principal display panel of the food’s label, and the words “golden color and delicate taste”, “amber color and rich taste”, “dark color and robust taste”, or “very dark color and strong taste”, as appropriate, must also conspicuously appear on the food’s principal display panel in close proximity to the food’s name and in a size reasonably related to the size of the name of the food.

2. The name of the food defined in paragraph (3) of subdivision (b) of this section is “Processing Grade Maple Syrup”. The name “Processing Grade Maple Syrup” must conspicuously appear on the principal display panel of the food’s label, and the words “For Food Processing Only” and “Not for Retail Sale” must also conspicuously appear on the food’s principal display panel in close proximity to the food’s name and in a size reasonably related to the size of the name of the food.

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

Mr. Stephen Stich, NYS Department of Agriculture and Markets, 10B Airline Drive, Albany, NY 12235, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

Five days after the last scheduled public hearing.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Consensus Withdrawal Objection

The proposed rule was originally proposed as a consensus rule but was withdrawn due to the submission of an objection received immediately prior to the end of the comment period. The person who commented stated that he believed that the proposed rule, which provides for new maple syrup grades, would cause consumer confusion. He also stated that he believed that the proposed rule would allow processing grade maple syrup, which is maple syrup that is of a lesser quality than “Grade A” maple syrup, to be sold to retailers or directly to consumers.

Regulatory Impact Statement

1. Statutory authority:

Agriculture and Markets Law sections 16, 18, 160-u, 203, and 214-b.

2. Legislative objectives:

As set forth in Agriculture and Markets Law section 160-u, the Legislature provided that the Commissioner of Agriculture and Markets must promulgate rules and regulations to carry out the requirement that each package of maple syrup offered for sale to consumers, must be plainly marked as to grade. The proposed rule advances that objective by providing that each variety of maple syrup must be labeled with an appropriate designated grade.

3. Needs and benefits:

The proposed rule is needed to facilitate trade in maple syrup, to the benefit of the State’s maple syrup industry. Currently, there are approximately 500 manufacturers of maple syrup in New York who, in 2011, produced maple syrup valued in excess of $22,000,000.00. The State’s maple syrup manufacturers sell their syrup not only in New York but throughout the United States and Canada. The proposed rule, if adopted, would require the State’s maple syrup manufacturers to label their maple syrup with the same grades as required in the other states and Canadian provinces in which it is sold, thereby allowing such maple syrup to be readily sold in such jurisdictions, to the benefit of the State’s manufacturers.

The proposed rule is also needed to provide necessary information to consumers of maple syrup. Currently, 1 NYCRR Part 175 sets forth maple syrup grades that are determined, primarily, upon whether the syrup is of “good” color, a standard that is somewhat subjective and vague. The proposed rule, if adopted, will provide for four different varieties of “Grade A” maple syrup, as well as for a “processing” grade of maple syrup, and the standards for determining a particular maple syrup’s grade will be based upon the syrup’s color, taste, and percentage of light transmission, a standard far less subjective than it is at present. As such, consumers will be better assured that the grade of maple syrup that they purchase will meet their needs and expectations.

4. Costs:

a) Costs to regulated parties:

The proposed rule, if adopted, will require the State’s maple syrup manufacturers to label packages of maple syrup for sale to consumers with the appropriate grade. Such maple syrup manufacturers will, therefore, have to have on hand a sufficient quantity of labels that set forth the grade of the maple syrup that is offered for sale. Because, however, the Department will not make the proposed rule effective until the end of the next maple syrup manufacturing season subsequent to the rule’s promulgation, and because maple syrup manufacturers are already required to place labels upon their packages of maple syrup, the proposed rule will not impose any additional costs upon such manufacturers with regard to the labeling requirement set forth therein.

As set forth above, the proposed rule will provide for new maple syrup grades. In order to determine a particular maple syrup’s grade, a manufacturer will need to obtain a grading classification kit which presently costs between $50.00 - $400.00.

b) Costs to the agency and to state and local government for implementation and continuation of the rule:

None.

5. Local government mandates:

None.

6. Paperwork:

None.

7. Duplication:

Federal regulations provide for a standard of identity for maple syrup (see Title 21 of the Code of Federal Regulations [“CFR”] section 168.140) which, however, is not pre-emptive upon the states (see Title 21 of the United States Code section 342-1[a][1]); as such, New York is free to promulgate its own standard of identity for such food. The standard of identity for maple syrup set forth in the proposed rule is marginally more restrictive than the federal standard of identity so, in the event that the proposed rule is adopted, New York’s maple syrup manufacturers who are in compliance therewith will also be in compliance with the federal standard of identity and will be able to sell their maple syrup in other states. New York has a compelling interest in ensuring that maple syrup manufactured within its borders is natural and of the highest quality, and the proposed rule, although it does overlap federal regulations, is designed to and will help achieve that purpose.

8. Alternatives:

An alternative would have been to keep 1 NYCRR Part 175 in full force and effect. This alternative was rejected because the standard for determining grades of maple syrup, set forth therein, allows for subjective judgment. Furthermore, the grades of maple syrup provided in 1 NYCRR Part 175 are inconsistent with the maple syrup grades required in the states and Canadian provinces in which New York-manufactured maple syrup is sold. As such, the Department decided that maintaining 1 NYCRR Part 175 was not a viable alternative.

9. Federal standards:

The standard of identity for maple syrup set forth in the proposed rule is marginally more stringent than the federal standard of identity, set forth in 21 CFR section 168.140. The Department feels that the federal standard of identity is too lenient and allows substances to be labeled as “maple syrup” that are not of the same quality as “real” maple syrup and that do not meet consumer expectations for such food.

10. Compliance schedule:

The Department anticipates that the proposed rule, if adopted, will be made effective at some point after the 2014 maple syrup manufacturing season. Once the proposed rule is adopted, it is estimated that maple syrup manufacturers will be able to obtain appropriate labels within one – two months thereafter.

Regulatory Flexibility Analysis

1. Effect of rule:

There are approximately 500 manufacturers of maple syrup in New York who will be affected by the proposed rule.

2. Compliance requirements:

Each maple syrup manufacturer will have to label each package of maple syrup with the words “maple syrup” and with the applicable grade of maple syrup, as set forth in the proposed rule.

3. Professional services:

None.

4. Compliance costs:

Each maple syrup manufacturer will need to obtain a grading classification kit in order to properly determine the grade of maple syrup manufactured; a kit costs between $50.00 - $400.00, depending upon its quality and reliability. Each maple syrup manufacturer will also need to have labels that accurately set forth the grade of maple syrup manufactured. Because manufacturers presently need to have labels that set forth certain required information and because the proposed rule will not be effective until the beginning of the 2014 maple syrup manufacturing season, the proposed rule should have no adverse financial impact upon manufacturers because they should be able to use all of their “old” labels before they have to obtain new ones.

5. Economic and technological feasibility:

The proposed rule requires minimal expenditures, and no technological expertise is required, to comply.

6. Minimizing adverse impact:

The proposed rule should have no net adverse economic impact on small businesses. All of the maple syrup manufacturers located in New York meet the definition of “small business”, as set forth in State Administrative Procedure Act section 102(8), and many of them are members of the New York State Maple Syrup Association (“NYSMSA”). Prior to the proposed rule being finalized, it was furnished to the NYSMSA for its consideration; NYSMSA subsequently informed the Department that it was in agreement with its provisions. As such, the State’s maple syrup manufacturers are apparently of the opinion that whatever minimal costs are associated with adoption of the proposed rule are outweighed by the economic benefits that promulgation of the proposed rule will confer.

The approaches for minimizing adverse impact, as set forth in SAPA section 202-b(1), were considered and the Department has decided, consistent with paragraph (a) thereof, to make the proposed rule effective no earlier than the beginning of the 2014 maple syrup manufacturing season.

7. Small business and local government participation:

Prior to finalizing the proposed rule, the Department contacted officers and members of NYSMSA, as well as the director of the Cornell University Maple Uihlein Forest Maple Laboratory, and considered their comments in formulating the proposed rule.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

There are approximately 500 manufacturers of maple syrup in New York; all are located in rural areas. Because most manufacturers reside in counties of less than two hundred thousand but because many manufacturers reside in the same counties, it is estimated that the proposed rule will apply to 50 number of rural areas.

2. Reporting, recordkeeping and other compliance requirements:

Each maple syrup manufacturer will have to label each package of maple syrup with the words “maple syrup” and with the applicable grade of maple syrup, as set forth in the proposed rule.

3. Costs:

The proposed rule, if adopted, will require the State’s maple syrup manufacturers to label packages of maple syrup for sale to consumers with the appropriate grade. Such maple syrup manufacturers will, therefore, have to have on hand a sufficient quantity of labels that set forth the grade of the maple syrup that is offered for sale. Because, however, the Department will not make the proposed rule effective until the end of the next maple syrup manufacturing season subsequent to the rule’s promulgation, and because maple syrup manufacturers are already required to place labels upon their packages of maple syrup, the proposed rule will not impose any additional costs upon such manufacturers with regard to the labeling requirement set forth therein.

As set forth above, the proposed rule will provide for new maple syrup grades. In order to determine a particular maple syrup’s grade, a manufacturer will need to obtain a grading classification kit which presently costs between $50.00 - $400.00.

4. Minimizing adverse impact:

The proposed rule should have no net adverse economic impact on small businesses. All of the maple syrup manufacturers located in New York meet the definition of “small business”, as set forth in State Administrative Procedure Act section 102(8), and many of them are members of the New York State Maple Syrup Association (“NYSMSA”). Prior to the proposed rule being finalized, it was furnished to the NYSMSA for its consideration; NYSMSA subsequently informed the Department that it was in agreement with its provisions. As such, the State’s maple syrup manufacturers are apparently of the opinion that whatever minimal costs are associated with adoption of the proposed rule are outweighed by the economic benefits that promulgation of the proposed rule will confer.

The approaches for minimizing adverse impact, as set forth in SAPA section 202-b(1), were considered and the Department has decided, consistent with paragraph (a) thereof, to make the proposed rule effective no earlier than the beginning of the 2014 maple syrup manufacturing season.

5. Rural area participation:

Prior to finalizing the proposed rule, the Department contacted officers and members of NYSMSA, as well as the director of the Cornell University Maple Uihlein Forest Maple Laboratory, and considered their comments in formulating the proposed rule.

Job Impact Statement

The proposed rule sets forth a standard of identity for maple syrup that is consistent with the definition set forth in statute and also provides for new grades of maple syrup that reflect the maple syrup’s color, taste, and appearance. The grades set forth in the proposed rule are consistent with the grades required in other states and in Canadian provinces in which maple syrup manufactured in New York is sold; as such, trade in such maple syrup could increase and thereby cause employment opportunities to increase. Furthermore, such grades will also allow consumers to better identify the type of maple syrup they wish to purchase which could, again, increase trade in such food and thereby result in an increase in job opportunities.