AAM-28-14-00004-P Updating Regulations That Apply to the Production and Processing of Milk and Milk Products

7/16/14 N.Y. St. Reg. AAM-28-14-00004-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 28

July 16, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAM-28-14-00004-P

Updating Regulations That Apply to the Production and Processing 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 amend section 2.8; repeal Parts 10, 12 and 13 of Title 1 NYCRR.

Statutory authority:

Agriculture and Markets Law, sections 16, 18, 46-a, 47, 254 and 255

Subject:

Updating regulations that apply to the production and processing of milk and milk products.

Purpose:

To repeal unnecessary and obsolete regulations applicable to the production and processing of milk and milk products.

Text of proposed rule:

Section 2.8 of Part 2 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended to read as follows:

Section 2.8 Quality Standards

Milk and milk products		Standards
Prepasteurized milk for Grade A use	Temperature………..	Cooled to 45°F (7°C) or less within two hours after milking, provided that the blend temperatures following subsequent milkings shall not exceed 50°F (10°C).
	Bacterial limits……..	Individual producer milk not to exceed 100,000 per ml. prior to commingling with other producer milk. Not to exceed 300,000 per ml. as commingled milk prior to pasteurization.
	[Sediment …………	Less than 1.5 mg. on individual producer milk; less than 1.0 mg. on commingled producer milk as determined by the provisions of 1 NYCRR Part 12.]
	Drugs ………………	Not to exceed the applicable standard or tolerance set forth in transmittals supplementing the PMO bearing identification numbers M-1-94-4, IMS-a-30, M-1-91-6, M-1-92-1, M-1-92-10, M-1-92-14 and M-a-86, more fully described in section 2.2(kk)(14), (15), (16), (17), (20), (21) and (22) of this Part.
	Abnormalities………	Milk to have normal odor and appearance.
	Somatic cells……….	[Not to exceed 1,000,000 per ml., except that after 7/1/93, not] Not to exceed 750,000 per ml. for prepasteurized milk from cows.
Prepasteurized milk for non-Grade A use	Temperature…………	In cans, cooled to 55°F (13°C) or lower within two hours after milking and delivered to the plant at 60°F (16°C) or lower. In bulk, cooled to 45°F (7°C) or less within two hours provided that the blend temperatures following subsequent milkings shall not exceed 50°F (10°C).
	Bacterial limits……	Not to exceed 1,000,000 per ml. prior to commingling with other producer milk. Not to exceed 3,000,000 per ml. as commingled milk prior to pasteurization.
	Drugs……………….	Not to exceed the applicable standard or tolerance set forth in transmittals supplementing the PMO bearing identification numbers M-1-94-4, IMS-a-30, M-1-91-6, M-1-92-1, M-1-92-10, M-1-92-14 and M-a-86, more fully described in section 2.2(kk)(14), (15), (16), (17), (20), (21) and (22) of this Part.
	[Sediment…………..	Less than 1.5 mg. on individual producer milk; less than 1.0 mg. on commingled producer milk as determined by the provisions of 1 NYCRR Part 12.]
	Abnormalities………	Has normal odor and appearance.
	Somatic cells……….	[Not to exceed 1,000,000 per ml. except that after 7/1/93, not] Not to exceed 750,000 per ml. for prepasteurized milk from cows.
Pasteurized milk, low fat milk, skim milk, milk products, goat milk, goat milk products, sheep milk and sheep milk products, melloream, frozen desserts and frozen dessert mix	Temperature……......	Cooled to 45°F (7°C) or less and maintained thereat.
	Bacterial limits*……	20,000 per ml. except with respect to frozen desserts, not to exceed 100,000 per ml.
	Coliform………….	Not to exceed 10 per ml. except with respect to frozen desserts, not to exceed 20 per ml.; provided, that in the case of bulk milk transport tank shipments, shall not exceed 100 per ml.
	Phosphatase ………..	Less than 1 microgram per ml. by the Scharer Rapid Method or equivalent.
	Drugs……………….	Not to exceed the applicable standard or tolerance set forth in transmittals supplementing the PMO bearing identification numbers M-1-94-4, IMS-a-30, M-1-91-6, M-1-92-1, M-1-92-10, M-1-92-14 and M-a-86, more fully described in section 2.2(kk)(14), (15), (16), (17), (20), (21) and (22) of this Part.
Raw milk	Temperature……......	Cooled to 45°F (7°C).
	Bacterial limits……..	30,000 per ml.
	Drugs……………….	Not to exceed the applicable standard or tolerance set forth in transmittals supplementing the PMO bearing identification numbers M-1-94-4, IMS-a-30, M-1-91-6, M-1-92-1, M-1-92-10, M-1-92-14 and M-a-86, more fully described in section 2.2(kk)(14), (15), (16), (17), (20), (21) and (22) of this Part.
	[Sediment………......	Less than 1.5 mg. as determined by the provisions of 1 NYCRR Part 12.]
	Abnormalities…........	Milk to have normal odor and appearance.
	Somatic cells……….	[Not to exceed 1,000,000 per ml. except that after 7/1/93, not] Not to exceed 750,000 per ml. for raw milk from cows.
Pasteurized cultured products	Temperature…..........	Same as pasteurized milk.
	Coliform…………....	Same as pasteurized milk.
	Phosphatase…….......	Same as pasteurized milk.
*Not applicable to cultured products.
Butter, 80% cream, plastic cream, mixtures of butterfat, sugar or sweetening agent, moisture and flavoring shall conform to the following:
		SPC not to exceed 100,000 per gram, coliform count not to exceed 20 per gram, yeast and/or mold not to exceed 100 per gram
Nonpasteurized frozen desserts		SPC not to exceed 100,000 per gram, coliform count not to exceed 20 per gram
Whipped cream, instant whipped cream, instant vegetable topping, milkshake		SPC not to exceed 100,000 per gram, coliform count not to exceed 20 per gram
Dry whole milk when used as an ingredient in a frozen dessert or a Grade A non-storable milk product shall be U.S.D.A. extra grade or its equivalent. Nonfat dry milk, dry whey and dry buttermilk when used as an ingredient in a frozen dessert or a Grade A non-storable milk product shall meet the requirements of the U.S.D.A. extra grade or its equivalent. Fats and oils other than from milk shall conform to the applicable provisions of the United States Food, Drug and Cosmetic Act as amended or those of any applicable State regulation for fats and oils of food grade standard.
Condensed milk, condensed whey mixes, blends and similar products received in bulk shall conform to the following:		SPC not to exceed 100,000 per gram, coliform count not to exceed 100 per gram
Milk products and goat milk products separated from milk or goat milk heated between 45°F and 125°F		Not to exceed the temperature and drug standard and bacterial limit for prepasteurized milk for Grade A use
Milk products and goat milk products separated from milk or goat milk heated to a temperature greater than 125°F and less than 161°F		Not to exceed the temperature and drug standard and bacterial limit for pasteurized milk, lowfat milk, skim milk, milk products, goat milk, goat milk products and frozen desserts

Part 10 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is repealed.

Part 12 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is repealed.

Part 13 of Title 1 of the Official Compilation of Codes, Rules and Regulations of the State of New York is repealed.

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

Casey McCue, 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:

45 days after publication of this notice.

Consensus Rule Making Determination

The Department has considered the proposed amendments to Parts 2, 10, 12 and 13 and has determined that no person is likely to object to the rule as written.

The proposed amendments to Section 2.8 and repeal of Part 12 would remove sediment testing requirements for milk. Sediment is organic matter that is not a natural component of milk, but which can become incorporated into the milk during harvest of the milk from the cow. However, modern milk production generally uses sealed lines, storage tanks and sanitary pumps that do not expose milk to the risk of sediment contamination. Additionally, milk producers and processors test milk for bacteria on a regular basis, and these tests reveal inadequate sanitation in facilities or contamination in milk before the milk would fail a sediment test. The United States Department of Agriculture repealed federal sediment-testing requirements for most dairy farms in Federal Register Vol. 77, No. 104, dated May 30, 2012. Likewise, milk inspectors working for the NYS Department of Agriculture and Markets stopped conducting sediment testing on farms producing Grade A milk in 2012. Repealing the sediment testing requirements in Parts 2.8 and 12 will conform New York State’s regulations to the applicable federal regulations, as well as the realities of the modern dairy industry. Additionally, the amendment of Part 2.8 makes a technical change, by removing superfluous references to Somatic Cell standards that applied prior to July 1, 1993. No person is likely to object to these changes. Accordingly, a consensus rule making is appropriate under the State Administrative Procedure Act § 102(11)(a) and (c).

The proposed repeal of Part 10 would remove obsolete requirements governing the injection of steam into milk and cream. The requirements of Part 10 were enacted in 1960 to respond to concerns that milk companies would use steam to adulterate milk or cream with water. Since 1960, the industry has established a consistent track record of not adulterating dairy products using steam. Additionally, the use of steam in processing milk or cream is covered by portions of 1 NYCRR Part 2, such as 1 NYCRR 2.46(b)(7) and (8), and by requirements in the Grade “A” Pasteurized Milk Ordinance, 2009 revision, which is incorporated into state regulations in 1 NYCRR 2.1(b)(1). No one is likely to object to the repeal of the obsolete and superfluous requirements of Part 10. Accordingly, a consensus rule making is appropriate under the State Administrative Procedure Act § 102(11)(a) and (c).

The proposed repeal of Part 13 would remove obsolete requirements governing the sale and distribution of dry milk powder. When these regulations were promulgated, dry milk products were subject to a Dry Milk Ordinance, independent from the Grade “A” Pasteurized Milk Ordinance. In 2003, the Dry Milk Ordinance was incorporated into the Grade “A” Pasteurized Milk Ordinance. The Grade “A” Pasteurized Milk Ordinance, 2009 revision, is incorporated into state regulations in 1 NYCRR 2.1(b)(1). Accordingly, the requirements of Part 13 are now unnecessary. No one is likely to object to the repeal of the duplicative requirements of Part 13. Accordingly, a consensus rule making is appropriate under the State Administrative Procedure Act § 102(11)(a) and (c).

Job Impact Statement

The Department has reviewed the potential job impact of this rulemaking, and has determined that the amendments to Parts 2.8, 10, 12 and 13 will not have a substantial adverse impact on jobs and employment opportunities. It is evident from the subject matter of the rule making that the changes will not have a substantial adverse impact on jobs and employment opportunities. Rather, the rules seek to repeal superfluous or unenforced rules, and to conform state regulations to regulations of the United States Department of Agriculture. By removing superfluous rules and promoting uniformity between state and federal regulations, the amendments will have a slight positive or no impact on job and employment opportunities. Accordingly, a full job impact statement is not required pursuant to State Administrative Procedure Act § 201-a(2)(a).