AAM-29-13-00013-P Incorporation by Reference of the 2011 Edition of the Grade A Pasteurized Milk Ordinance ("PMO")

7/17/13 N.Y. St. Reg. AAM-29-13-00013-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 29

July 17, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAM-29-13-00013-P

Incorporation by Reference of the 2011 Edition of the Grade A Pasteurized Milk Ordinance ("PMO")

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 2.1 of 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:

Incorporation by reference of the 2011 edition of the Grade A Pasteurized Milk Ordinance ("PMO").

Purpose:

To require certain producers, processors and manufacturers of milk and milk products to comply with the 2011 edition of the PMO.

Text of proposed rule:

Paragraph (1) of subdivision (b) of section 2.1 of 1 NYCRR is amended to read as follows:

(1) 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 90 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 (2) of this subdivision. 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] 2011 [Revision] edition, published by the United States Department of Health and Human Services, Washington, DC (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 (2) of this subdivision. 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, NY 12235, and at the Department of State, 41 State Street, Albany, NY 11231.

Subdivision (c) of section 2.1 of 1 NYCRR is amended to read as follows:

(c) Every term used in subdivision (b) of this section that is defined in the Grade A Pasteurized Milk Ordinance, [2009] 2011 edition, shall have the meaning ascribed to such term therein.

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 & 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 proposed rule will amend 1 NYCRR section 2.1 to incorporate by reference the 2011 edition of the Grade A Pasteurized Milk Ordinance (“the 2011 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 is non-controversial. The 2011 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 2011 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 2011 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 2011 PMO. Furthermore, 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 2011 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 2011 edition of the Grade A Pasteurized Milk Ordinance (“the 2011 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 are already practically required to substantially comply with the provisions of the 2011 PMO, and setting forth such requirement in regulations places no additional burden upon them. As such, the proposed rule will have no adverse impact upon jobs or employment opportunities.