PROPOSED RULEMAKING
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 59]
Deletion of Grade AA Regulatory Standards for Milk
[26 Pa.B. 3546] The Department of Agriculture (Department) proposes to amend Chapter 59 (relating to milk sanitation) by deleting all current provisions that allow milk to be designated Grade AA.
The statutory authority for these regulatory amendments is the act of July 2, 1935 (P. L. 589, No. 210) (31 P. S. §§ 645--660f), which authorizes the Department to regulate the production, processing, storage and packaging of milk to safeguard human health.
Under current regulations, milk processed within this Commonwealth may be designated Grade AA if it meets prescribed chemical, bacteriological and temperature standards. This Grade AA standard, though, is in direct conflict with the requirements of the Nationwide compact under which Grade A milk moves unimpeded in interstate commerce. The regulatory amendment is necessary to keep Pennsylvania-produced milk and milk products competitive in interstate commerce, and to prevent the imposition of embargoes or burdensome inspection or certification requirements upon Pennsylvania-produced milk and milk products by other states.
The Commonwealth is a participant in the National Conference of Interstate Milk Shippers (NCIMS). The NCIMS is an organization created by the United States Food and Drug Administration Milk Safety Branch, state regulatory agencies and the Nation's dairy industry to standardize regulations to ensure the safety of the milk supply and to facilitate the interstate shipment of milk. Prior to NCIMS individual states--and even individual municipalities--had established milk sanitation or testing requirements that impeded the flow of milk in interstate commerce. The NCIMS developed a uniform set of standards--the Grade A Pasteurized Milk Ordinance--which, when adhered to by a member state, allows that state's milk to move in interstate commerce to other member states without those states imposing any further sanitation or testing requirements.
Since the 1950's, the Department has allowed limited use of a Grade AA designation for certain dairy products produced in this Commonwealth. As early as 1953, though, the Department and the Commonwealth's dairy processors were aware the NCIMS standards for Grade A milk prohibited the use of super-grade designations such as Grade AA.
The Commonwealth gained NCIMS in compliance status in the late 1970's.
The Department revised its milk sanitation regulations in 1982 and planned to delete the provisions relating to Grade AA at that time. A committee of dairy processors requested the retention of Grade AA standards and agreed to refrain from seeking certification for the interstate shipment of their pasteurized milk in exchange for the retention of these standards. The Department acceded to this request and retained the Grade AA standards.
Although the Department believed retention of the Grade AA standard for certain milk processed and sold only within this Commonwealth would not put other NCIMS member states at a competitive disadvantage, this has not proven to be the case. Out-of-State dairy processors who produce Grade A milk in accordance with the NCIMS Grade A Pasteurized Milk Ordinance (PMO) and attempt to market their milk in this Commonwealth are at some disadvantage when competing with products bearing a Grade AA designation.
On December 27, 1995, the NCIMS Council III (of which the Commonwealth is a member) ruled, in a 19-to-1 decision, that the Commonwealth's Grade AA standards violate the NCIMS's Grade A PMO. On January 8, 1996, the NCIMS Executive Board adopted this decision.
The NCIMS has made clear its intention to designate the Commonwealth as a state that is not in compliance with the NCIMS Grade A PMO if the Commonwealth does not promptly delete its Grade AA standard. The Grade A PMO plainly states (at Part II, Section 4) that:
. . . The use of super grade designations shall not be permitted. Grade designations such as ''Grade AA Pasteurized'' . . . give the consumer the impression that such a grade is significantly safer than Grade A. Such an implication is false, because the Ordinance requirements for Grade A pasteurized, ultrapasteurized or aseptically processed milk when properly enforced, will insure that this grade of milk will be as safe as milk can practicably be made.Grade AA milk represents less than 5% of this Commonwealth's dairy output. Grade A milk, by contrast, represents over 90% of this Commonwealth's dairy output. If the Department deletes its Grade AA regulatory standards, current Grade AA processors will be affected. If the Department fails to delete its Grade AA regulatory standards, the NCIMS will take action that would seriously impede the marketability of Pennsylvania-produced Grade A milk in interstate commerce.
If the NCIMS designates this Commonwealth as a state that is not in compliance with the Grade A PMO, the immediate effect would be to allow member states to embargo Pennsylvania-produced milk or impose sanitation, testing or compositional requirements that would impede the interstate flow of that milk. For example, the state regulatory agency overseeing Maryland's dairy industry has stated it would require Pennsylvania dairy processors to be inspected by Maryland inspection personnel as a prerequisite to the importation of Pennsylvania-produced milk into Maryland.
This Commonwealth is an exporter of dairy products. Its dairy production far outstrips its consumption. The vast majority of this Commonwealth's dairy production is geared for compliance with the NCIMS standards in order to facilitate this export industry. On balance, the Department agrees the Grade AA regulatory standards must be deleted in order to protect this important export industry.
Fiscal Impact
Commonwealth
The proposed amendments would impose no costs and have no fiscal impact upon the Commonwealth.
Political Subdivisions
The proposed amendments would impose no costs and have no fiscal impact upon political subdivisions.
Private Sector
The proposed amendments may impose some costs upon the Pennsylvania-based dairy processors that currently produce milk meeting Grade AA requirements. Although the proposed amendments would decrease the testing costs borne by these dairy processors, these processors might suffer some short-term financial loss as customers familiar with the Grade AA designation on milk containers from these dairy processors encounter Grade A designations for the first time. It is not known whether these losses would be entirely offset by decreased testing costs.
The result of failing to proceed with these proposed amendments would be to subject Pennsylvania-produced milk and milk products to embargoes or testing requirements of other NCIMS member states. The adverse fiscal impact on this Commonwealth's dairy industry would be immediate and dramatic, and would far outweigh any adverse fiscal impact which this Commonwealth's Grade AA dairy processors might suffer if the regulation is promulgated.
General Public
The proposed amendments would impose no costs and have no fiscal impact upon the general public.
Paperwork Requirements
The proposed amendments would not result in an increase in paperwork.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed amendments on July 17, 1996, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs. In addition to the proposed amendments, the Department provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department in compliance with Executive Order 1982-2, ''Improving Government Regulations,'' and Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
If IRRC has an objection to any portion of the proposed amendments, it must notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the proposed amendments, by the Department, the General Assembly and the Governor of the objections raised.
Contact Person
All interested persons are invited to submit written comments regarding the proposed amendments within 30 days following publication in the Pennsylvania Bulletin. Comments are to be submitted to the Department of Agriculture, Bureau of Food Safety and Laboratory Services, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: James Dell.
Effective Date
The proposed amendments will become effective upon final adoption.
CHARLES C. BROSIUS,
Secretary(Editor's Note: A proposal to amend § 59.1(a) remains outstanding at 25 Pa.B. 5510 (December 2, 1995).)
Fiscal Note: 2-108. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART III. BUREAU OF [FOODS AND CHEMISTRY]FOOD SAFETY AND LABORATORY SERVICES
CHAPTER 59. MILK SANITATION
Subchapter A. PRELIMINARY PROVISIONS § 59.1. Definitions.
* * * * * (b) Milk and milk products. The following words and terms, when used in this chapter, [shall] have the following meanings, unless the context clearly indicates otherwise:
* * * * * [Commingled Grade AA milk--Commingled milk which will be used in the preparation of Grade AA pasteurized milk.]
* * * * * [Grade AA milk for pasteurization--Milk which conforms to the relevant provisions of this chapter and is used in the preparation of Grade AA pasteurized milk.]
* * * * * § 59.12. [Segregation.] (Reserved).
[Milk to be used in the preparation of Grade AA pasteurized milk shall be completely segregated during receiving, storing, processing and bottling.]
Subchapter B. STANDARDS FOR MILK AND MILK PRODUCTS
GENERAL PROVISIONS § 59.52. Table.
The following table sets forth the chemical, bacteriological and temperature standards for milk and milk products:
* * * * *
[Grade AA Milk for pasteurization Temperature--Bulk milk cooled to 40°F (4°C) or less within two hours after milking provided that the blend temperature after the first and subsequent milkings do not exceed 50°F (10°C). Bacterial limits--Individual producer milk not to exceed 20,000 per ml. prior to commingling with other producer milk. Growth Inhibitors--No growth inhibitor residue in excess of actionable level as determined by the B. stearothermophilus Disc Assay Method or equivalent. Somatic cell count--Samples exceeding 18mm WMT to be confirmed by DMSCC or acceptable tests. Not to exceed 1,000,000 per ml. Commingled Grade AA milk Temperature--Maintained at 45°F or less. Bacterial limits--Not to exceed 60,000 per ml. Growth inhibitors--No growth inhibitor residue in excess of actionable levels as determined by the B. stearothermophilus Disc Assay Method or equivalent.] * * * * * [Grade AA pasteurized milk Temperature--Cooled to 45°F (7°C) or less and maintained thereat. Bacterial limits--3,000 per ml. Coliform--Less than 1 per ml. Phosphatase--Less than 1 microgram per ml. by the Scharer Rapid Method or equivalent. Growth inhibitors--No growth inhibitor residue in excess of actionable level as determined by the B. stearothermophilus Disc Assay Method or equivalent.] * * * * *
Subchapter C. MISCELLANEOUS PROVISIONS § 59.310. Frequence of analyses.
[All required] Required bacteriological, chemical[,] and physical analyses shall be made in Pennsylvania approved dairy laboratories at the following minimum frequencies:
* * * * * (2) Milk for pasteurization.
(i) Milk for pasteurization shall be tested at least monthly for SPC or PLC, growth inhibitors, temperature[,] and somatic cell count.
[(ii) Grade AA milk for pasteurization shall be tested at least weekly for SPC or PLC and at least monthly for growth inhibitors, temperature and somatic cell count.
(iii)] (ii) Condensed milk, dry milk powder[,] and whey powder shall be tested at least monthly for SPC, coliform group[,] and growth inhibitors.
(3) Pasteurized milk, cultured and acidulated products.
[(i) Except as noted in subparagraph (ii), all] All types of pasteurized milk shall be tested at least monthly for standard plate count, coliform group, growth inhibitors[,] and phosphatase activity. Cultured or acidulated products shall be tested at least monthly for coliform group. Milk and cream used in processing of cultured or acidulated [prodcts] products shall be tested at least monthly for phosphatase activity prior to culturing or acidulating.
[(ii) Grade AA pasteurized milk shall be tested at least weekly for standard plate count, coliform group, and phosphatase activity and at least monthly for growth inhibitors.]
* * * * *
[Pa.B. Doc. No. 96-1207. Filed for public inspection July 26, 1996, 9:00 a.m.]
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