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PA Bulletin, Doc. No. 12-908

NOTICES

DEPARTMENT OF AGRICULTURE

Interim Guidelines for the Pennsylvania Preferred Trademark Licensure Program

[42 Pa.B. 2752]
[Saturday, May 19, 2012]

 The Department of Agriculture (Department) gives notice of the interim guidelines to be applied when the Department licenses third parties to make use of the Pennsylvania Preferred® trademark with respect to fluid milk.

 a. Statutory Authority

 The Pennsylvania Preferred Act (3 Pa.C.S. §§ 4601—4611) (act) authorizes the Department to adopt and use interim guidelines to implement the provisions of that statute through December 31, 2013, by which date successor regulations are to be in place.

 b. Purpose and Background

 The act establishes standards and requirements under which the Department licenses ''qualified entities'' to use the Pennsylvania Preferred® trademark. The terms and conditions of this license are set forth in a license agreement between the Department and the qualified entity.

 The act provides the Department the discretion to determine whether a person is a qualified entity (3 Pa.C.S. § 4605(a)(4)). It also requires the Department to consider the extent to which the agricultural commodity with respect to which the Pennsylvania Preferred® trademark would be used is ''. . . to the maximum extent possible given production season restrictions or market availability . . . a Pennsylvania-produced agricultural commodity'' (3 Pa.C.S. § 4604(2)(iii)).

 Fluid milk includes whole milk, reduced fat milk, skim milk, flavored milk, cream, buttermilk, half-and-half and similar products. This Commonwealth's dairy producers produce fluid milk in quantities that exceed the year-round needs of this Commonwealth's milk processors and milk consumers; and this surplus Commonwealth-produced fluid milk supply generally remains available on the Commonwealth market throughout the year. Against this backdrop, the interim guidelines prohibit (with several exceptions) the use of the Pennsylvania Preferred® trademark with respect to fluid milk that is not entirely Commonwealth-produced fluid milk.

 The interim guidelines acknowledge that there may be exceptions to the prohibition described previously, such as where there is a Statewide shortage of fluid milk or where a processor commingles Commonwealth-produced fluid milk with other fluid milk on an incidental, emergency or short-term-basis.

 The Department will use the experience it gains in administering these interim guidelines in preparing the successor regulations.

 c. Paperwork

 The interim guidelines will not appreciably increase the paperwork requirements of fluid milk processors. Although they require a fluid milk processor that is licensed by the Department to use the Pennsylvania Preferred® trademark with respect to Commonwealth-produced fluid milk to keep a record of any commingling of that fluid milk with other fluid milk, this type of record is already routinely kept.

 The interim guidelines will not appreciably increase the paperwork requirements of the Department. The Department licenses the use of the Pennsylvania Preferred® trademark through trademark license agreements that are not impacted by this document.

 d. Fiscal Impact

 The interim guidelines will be fiscally neutral. They will not result in appreciable costs or savings to the Department or the Commonwealth, to fluid milk processors or other private sector entities, to political subdivisions or the general public.

 e. Effective Date

 The interim guidelines will be effective immediately upon publication in the Pennsylvania Bulletin.

 f. Contact Person

 The contact person for the interim guidelines is Frank Jurbala, Director, Bureau of Market Development, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408.

 g. Interim Guidelines

Section 1. Definitions.

 The following words and terms, when used in these interim guidelines, have the following meanings, unless the context clearly indicates otherwise:

 Act—The Pennsylvania Preferred Act (3 Pa.C.S. §§ 4601—4611).

 Department—The Department of Agriculture of the Commonwealth.

 Fluid milk—Milk, skimmed milk, cream, sour milk, buttermilk, and all other fluid derivatives of milk. The term includes milk from any hooved mammal species.

 Licensee—A qualified entity that is subject to a current Pennsylvania Preferred® trademark license agreement with the Department.

 Pennsylvania-produced fluid milk—Fluid milk that is entirely produced within the Commonwealth of Pennsylvania.

 Pennsylvania Preferred® trademark—One or more trademarks that consist of the phrase ''Pennsylvania Preferred'' or ''PA Preferred,'' and that may include specific graphic designs or artwork as part of the trademark registration.

 Person—An individual, partnership, corporation, association or any other legal entity.

 Qualified entity—A person that produces, processes, prepares, sells, offers for sale, markets, promotes or is involved with any aspect of production, processing, preparation, promotion, marketing, sale or offering for sale of Pennsylvania-produced agricultural commodities.

Section 2. Licensure of the Pennsylvania Preferred® trademark with respect to fluid milk.

 (a) General availability of Pennsylvania-produced fluid milk. The Department has determined that fluid milk is an agricultural commodity that is, in general, produced by Commonwealth dairy producers in quantities that exceed the year-round needs of this Commonwealth's milk processors and milk consumers; and that this surplus Commonwealth-produced fluid milk supply generally remains available on this Commonwealth market throughout the year.

 (b) Eligibility.

 (1) A person that processes Commonwealth-produced fluid milk or that promotes or markets Commonwealth-produced fluid milk from such a processor is a qualified entity that is eligible to apply to be licensed by the Department to use the Pennsylvania Preferred® trademark with respect to that Commonwealth-produced fluid milk. Examples of fluid milk with respect to which this license may be granted include the following Commonwealth-processed or Commonwealth-produced items:

 • Whole Milk

 • Reduced Fat Milk

 • Skim Milk

 • Flavored Milk

 • Cream

 • Buttermilk

 • Half-and-Half

 • Other beverages comprised in whole or in part of fluid milk

 • Other fluid derivatives of milk

 (2) A person that processes fluid milk that is not Commonwealth-produced fluid milk, or that promotes or markets fluid milk from such a processor, shall not be a qualified entity and shall not be eligible to apply to be licensed by the Department to use the Pennsylvania Preferred® trademark with respect to such milk.

 (3) Except as provided in subsections (c) or (d), fluid milk marketed under the Pennsylvania Preferred® trademark shall not be co-mingled with fluid milk produced outside this Commonwealth.

 (c) Exception; short Statewide supply. Subsections (a) and (b) notwithstanding, if the Department determines that the available supply of Commonwealth-produced fluid milk is not generally available as described in subsection (a), it shall publish notice of this in the Pennsylvania Bulletin and, in that notice, designate a time period—not to exceed one year—within which the Department may license the Pennsylvania Preferred® trademark with respect to fluid milk that is not entirely Commonwealth-produced fluid milk.

 (d) Exception; incidental, emergency or short-term commingling.

 (1) Subsections (a) and (b) notwithstanding, a person that is licensed by the Department to use the Pennsylvania Preferred® trademark with respect to Commonwealth-produced fluid milk may, on an incidental, emergency or short-term basis, commingle Commonwealth-produced fluid milk with other fluid milk, provided that the licensee maintains a record of all the commingling, including the dates and the quantities of Commonwealth-produced fluid milk other fluid milk commingled. The records shall be retained by the licensee for the current month and each of the preceding 12 months, and shall be made available for inspection by the Department upon written or verbal request of the Department.

 (2) The Department may review the referenced records and determine whether the commingling is acceptable under Paragraph (1). If the commingling was not acceptable, the Department shall provide the licensee a written warning to refrain from such commingling again; and may terminate the license if unacceptable commingling occurs a second time.

 (3) If a person that is licensed by the Department to use the Pennsylvania Preferred® trademark with respect to Commonwealth-produced fluid milk seeks to commingle Commonwealth-produced fluid milk with other fluid milk, it may—before the commingling occurs—contact the Department for confirmation as to whether the proposed commingling is acceptable to the Department.

GEORGE D. GREIG, 
Secretary

[Pa.B. Doc. No. 12-908. Filed for public inspection May 18, 2012, 9:00 a.m.]


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