This regulatory impact statement, regulatory flexibility analysis, rural area flexibility analysis and/or job impact statement pertain(s) to a notice of emergency rule making, I.D. No. AAM-29-11-00004-E, printed in the State Register on July 20, 2011.
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 rule is needed by and will benefit New York's cheese industry, farmers' markets, and New York consumers. The rule 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 rule will 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 rule will make it more likely that cheese makers will offer their cheese for sale at such venues, the proposed rule will make it more likely that additional consumers will visit farmers' markets and spend their food dollars there.
Finally, the rule will 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 rule imposes 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 the rule. 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:
The proposed rule removes a regulatory burden upon cheese makers; there is, therefore, no compliance schedule.
Regulatory Flexibility Analysis
1. Effect of rule:
The 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 rule will relieve a regulatory burden upon cheese makers while benefiting farmers' market patrons who wish to purchase non-prepackaged cheese. Furthermore, the 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 rule. No local governments will be affected by the rule.
2. Compliance requirements:
The 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 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 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 rule does not affect them.
6. Minimizing adverse impacts:
The Department foresees, for the reasons set forth above, that the 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 rule and requested input. The representative approved the intent of the rule and made comments which were considered in the drafting of the rule.
Because this 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 the rule 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 adoption of the rule, pursuant to SAPA section 202-bb(4)(a).
