AAM-36-10-00004-P Definitions and Standards of Identity Relating to Milk and Milk Products

9/8/10 N.Y. St. Reg. AAM-36-10-00004-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 36

September 08, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAM-36-10-00004-P

Definitions and Standards of Identity Relating to 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 sections 2.2(a), (gg)(1), (2), 17.12, 17.18, 17.19 and 17.20 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:

Definitions and Standards of Identity relating to milk and milk products.

Purpose:

To update the incorporations by reference contained in sections 2.2(a), 2.2(gg)(1) and (2), 17.12, 17.18, 17.19 and 17.20.

Text of proposed rule:

Subdivision (a) of section 2.2 of 1 NYCRR is amended to read as follows:

(a) Aseptically processed, when modifying the term milk, lowfat milk, skim milk, milk products, goat milk, goat milk products, sheep milk, sheep milk products, melloream or frozen desserts, means that the food has been subjected to sufficient processing to maintain the commercial sterility of the product under normal non-refrigerated conditions and has been packaged in a hermetically sealed container, in conformance with part 113 of title 21 of the Code of Federal Regulations (revised as of [April 1, 1993] April 1, 2010; U.S. Government Printing Office, Washington, DC 20402) and with Appendix L and Item 16p(c) of the Pasteurized Milk Ordinance. A copy of title 21 of the Code of Federal Regulations and of the Pasteurized Milk Ordinance are available for public inspection at the Division of Milk Control, Department of Agriculture and Markets, [One Winners Circle] 10B Airline Drive, Albany, NY 12235.

Paragraphs (1) and (2) of subdivision (gg) of section 2.2 of 1 NYCRR is amended to read as follows:

(gg) Non-storable milk product means:

(1) flavored dairy drink, and dairy shake, as defined in sections 17.2 and 17.6 of this Title, respectively, as well as acidified milk, cultured milk, lowfat dry milk, nonfat dry milk, nonfat dry milk fortified with vitamins A and D, acidified lowfat milk, cultured low fat milk, acidified skim milk, cultured skim milk, dry whole milk, dry cream, heavy cream, light cream, light whipping cream, sour cream, acidified sour cream, eggnog, half-and-half, sour half-and-half, yogurt, lowfat yogurt, nonfat yogurt, cottage cheese, dry curd cottage cheese and lowfat cottage cheese, as defined in sections 131.111, 131.112, 131.123, 131.125, 131.127, 131.136, 131.138, 131.144, 131.146, 131.147, 131.149, 131.150, 131.155, 131.157, 131.160, 131.162, 131.170, 131.180, 131.185, 131.187, 131.200, 131.203, 131.206, 133.128, 133.129 and 133.131 of Title 21 of the Code of Federal Regulations (revised as of [April 1, 1994] April 1, 2010), which standards of identity are incorporated by reference in section 17.18 of this Title. A copy of 21 CFR is available for public inspection at the Division of Milk Control, New York State Department of Agriculture and Markets, [One Winners Circle] 10B Airline Drive, Albany, NY 12235;

(2) a food that would meet a standard of identity for a food listed in paragraph (1) of this subdivision except that the food does not comply with the applicable standard of identity because of a deviation that is described by an expressed nutrient content claim, in accord with the sections of 21 CFR (revised as of [April 1, 1994] April 1, 2010) incorporated by reference in section 17.20 of this Title;

Subdivision (a) of section 17.12.of 1 NYCRR is amended to read as follows:

(a) Freezer-made milk shake means a pure, clean, wholesome, semiviscous drink prepared by stirring, while freezing, in a dispensing freezer, a pasteurized mix consisting of the ingredients prescribed for ice milk in section 135.120 of Title 21 of the Code of Federal Regulations (revised as of [April 1, 1994] April 1, 2010), a copy of which is available for public inspection at the Division of Milk Control, Department of Agriculture and Markets, [One Winners Circle] 10B Airline Drive, Albany, New York 12235, except that:

(1) it shall contain not less than 31/4 percent and not more than six percent milk fat; and

(2) its content of milk solids not fat shall not be less than 10 percent. Freezer-made milk shake may only be sold or served from a dispensing freezer and may not be sold hard frozen.

Subdivisions (a) and (b) of section 17.18.of 1 NYCRR are amended to read as follows:

(a) The standards of identity for butter, whipped cream, milk, acidified milk, cultured milk, concentrated milk, sweentened condensed milk, sweetened condensed skimmed milk, lowfat dry milk, nonfat dry milk, nonfat dry milk fortified with vitamins A and D, evaporated milk, evaporated skimmed milk, lowfat milk, acidified lowfat milk, cultured lowfat milk, skim milk, acidified skim milk, cultured skim milk, dry whole milk, dry cream, heavy cream, light cream, light whipping cream, sour cream, acidified sour cream, eggnog, half- and-half, sour half-and-half, acidified sour half-and-half, yogurt, lowfat yogurt, and nonfat yogurt, as set forth in section 58.2621 of Title 7 of the Code of Federal Regulations (revised as of [January 1, 1994] January 1, 2010) and in sections 131.110; 131.111; 131.112; 131.115; 131.120; 131.122; 131.123; 131.125; 131.127; 131.130; 131.132; 131.135; 131.136; 131.138; 131.143; 131.144; 131.146; 131.147; 131.149; 131.150; 131.155; 131.157; 131.160; 131.162; 131.170; 131.180; 131.185; 131.187; 131.200;131.203; and 131.206, respectively, of Title 21 of the Code of Federal Regulations (revised as of [April 1, 1994] April 1, 2010), are adopted and incorporated by reference herein. Copies of 7 CFR and 21 CFR are available for public inspection at the Division of Milk Control, Department of Agriculture and Markets, [One Winners Circle] 10B Airline Drive, Albany, New York 12235.

(b) The standards of identity for asiago fresh and asiago soft cheese, asiago medium cheese, asiago old cheese, blue cheese, brick cheese, brick cheese for manufacturing, caciocavallo siciliano cheese, cheddar cheese, cheddar cheese for manufacturing, low sodium cheddar cheese, colby cheese, colby cheese for manufacturing, low sodium colby cheese; cold-pack and club cheese; cold-pack cheese food; cold-pack cheese food with fruits, vegetables, or meats; cook cheese, koch kaese; cottage cheese; dry curd cottage cheese; lowfat cottage cheese; cream cheese; cream cheese with other foods; washed curd and soaked curd cheese; washed curd cheese for manufacturing; edam cheese; gammelost cheese; gorgonzola cheese; gouda cheese; granular and stirred curd cheese; granular cheese for manufacturing; grated cheese; grated American cheese food; hard grating cheeses; gruyere cheese; hard cheeses; limburger cheese; monterey cheese and monterey jack cheese; high moisture jack cheese; mozzarella cheese and scamorza cheese; low-moisture mozzarella and scamorza cheese; part-skim mozzarella and scamorza cheese; low-moisture part-skim mozzarella and scamorza cheese; muenster and munster cheese; muenster and munster cheese for manufacturing; neufchatel cheese; nuworld cheese; parmesan and reggiano cheese; pasteurized blended cheese; pasteurized blended cheese with fruits, vegetables, or meats; pasteurized process cheese; pasteurized process cheese with fruits, vegetables or meat; pasteurized process pimento cheese; pasterurized process cheese food; pasteurized process cheese food with fruits, vegetables or meats; pasteurized cheese spread; pasteurized cheese spread with fruits, vegetables, or meats; pasteurized neufchatel cheese spread with other foods; pasteurized process cheese spread; pasteurized process cheese spread with fruits, vegetables, or meats; provolone cheese; soft ripened cheeses; romano cheese; roguefort cheese, sheep's milk, blue-mold and blue-mold cheese from sheep's milk; samsoe cheese; sap sago cheese; semisoft cheeses; semisoft part-skim cheeses; skim milk cheese for manufacturing; spiced cheeses; part-skim spiced cheeses; spiced, flavored, standardized cheeses; Swiss and emmentaler cheese; and Swiss cheese for manufacturing as set forth in sections 133.102, 133.103, 133.104, 133.106, 133.108, 133.109, 133.111, 133.113, 133.114, 133.116, 133.118, 133.119, 133.121, 133.123, 133.124, 133.125, 133.127, 133.128, 133.129, 133.131, 133.133, 133.134, 133.136, 133.137, 133.138, 133.140, 133.141, 133.142, 133.144, 133.145, 133.146, 133.147, 133.148, 133.149, 133.150, 133.152, 133.153, 133.154, 133.155, 133.156, 133.157, 133.158, 133.160, 133.161, 133.162, 133.164, 133.165, 133.167, 133.168, 133.169, 133.170, 133.171, 133.173, 133.174, 133.175, 133.176, 133.178, 133.179, 133.180, 133.181, 133.182, 133.183, 133.184, 133.185, 133.186, 133.187, 133.188, 133.189, 133.190, 133.191, 133.193, 133.195, and 133.196 respectively, of 21 CFR (revised as of [April 1, 1994] April 1, 2010), are adopted and incorporated by reference herein. Copies 21 CFR are available for public inspection at the Division of Milk Control, Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235.

Section 17.19 of 1 NYCRR is amended to read as follows:

The standards of identity for ice cream and frozen custard, goat's milk ice cream, ice milk, goat's milk ice milk, mellorine, sherbet, and water ices as set forth in sections 135.110, 135.115, 135.120, 135.125, 135.130, 135.140 and 135.160, respectively, of Title 21 of the Code of Federal Regulations (revised as of [April 1, 1994] April 1, 2010) are adopted and incorporated by reference herein. A copy 21 CFR is available for public inspection at the Division of Milk Control, Department of Agriculture and Markets, [One Winners Circle] 10B Airline Drive, Albany, New York 12235.

Paragraph (b) of subdivision (a) of section 17.20 of NYCRR is amended to read as follows:

(b) Each package containing milk, a milk product or a frozen dessert shall be labeled in accordance and in compliance with the applicable provisions of sections 101.1, 101.2, 101.3, 101.4, 101.5, 101.8, [101.09] 101.9, 101.12, 101.13, 1010.14, 101.15, 101.17, 101.18, 101.22, 101.25, 101.71, 101.72, 101.73, 101.74, 101.75, 101.76, 101.77, 101.78, 101.100, 101.105, 105.62, 105.66, 105.67, 105.69, 130.3, 130.8, 130.10 and 130.11 of Title 21 of the Code of Federal Regulations (revised as of [April 1, 1994] April 1, 2010), a copy of which is available for public inspection at the Division of Milk Control, Department of Agriculture and Markets, [One Winners Circle] 10B Airline Drive, Albany, New York 12235, notwithstanding any provision of this Part to the contrary.

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

Casey McCue, Assistant Director, Division of Milk Control, NYS Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, [phone]

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 sections 2.2(a), 2.2(gg)(1) and (2), 17.12, 17.18, 17.19 and 17.20 of 1 NYCRR and has determined that this rule is a consensus rule within the meaning of section 102(11) of the State Administrative Procedure Act (SAPA).

Section 102(11) of SAPA defines consensus rule to be a rule proposed by an agency for adoption on an expedited basis pursuant to the expectation that no person is likely to object to its adoption because it merely (a) repeals regulatory provisions which are no longer applicable to any person, (b) implements or conforms to non-discretionary statutory provisions, or (c) makes technical changes or is otherwise non-controversial.

The proposed amendments to sections 2.2(a), 2.2(gg)(1) and (2), 17.12, 17.18, 17.19 and 17.20 of 1 NYCRR would update the incorporations by reference contained in these sections with current Federal regulations, relating to definitions and standards of identity for various milk and milk products.

The proposed amendments would also make technical corrections, by updating the addresses for the Department of Agriculture and Markets.

The milk industry and consumers will benefit by the proposed amendments. Since State standards and requirements are substantially the same as the current Federal standards and requirements, the milk industry will benefit by not having to change the ingredients or the processes in the manufacturing of the products. The milk industry will also benefit, in that honest competition will be promoted by the existence and enforcement of standards of identity and labeling requirements which are uniform throughout the country. Consumers will benefit, in that they will continue to be able to purchase food products which are made with the appropriate ingredients in the appropriate manner. Consumers will also continue to be able to rely on the labeling information, sufficient to enable them to make informed decisions in the market place.

Accordingly, since the proposed amendments will benefit regulated parties and the general public alike, will update the incorporations by reference to current Federal regulations and make corrections to State agency addresses, no person is likely to object to the rule as written since it makes technical changes or is otherwise non-controversial (SAPA section 101(11)(c)).

Job Impact Statement

It is anticipated that the proposed amendments will have no adverse effect on job or job opportunities in the State, due to the fact that the milk industry will benefit by the proposed amendments. Since State standards and requirements are substantially the same as the current Federal standards and requirements, the milk industry will benefit by not having to change the ingredients or the processes in the manufacturing of the products. Additionally, the milk industry will benefit by the promotion of honest competition, made possible by the existence and enforcement of standards of identity and labeling requirements which are uniform throughout the country.