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PA Bulletin, Doc. No. 11-1156



Notice of Comments Issued

[41 Pa.B. 3793]
[Saturday, July 9, 2011]

 Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 645.5b).

 The Commission has issued comments on the following proposed regulation. The agencies must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No. Agency/TitleClose of the Public
Comment Period
47-15 Milk Marketing Board 5/23/11 6/22/11
Electronic Methods for Testing
 Milk for Fat Content
41 Pa.B. 2123
(April 23, 2011)

Milk Marketing Board
Regulation #47-15 (IRRC #2891)

Electronic Methods for Testing Milk for Fat Content

June 22, 2011

 We submit for your consideration the following comments on the proposed rulemaking published in the April 23, 2011 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Milk Marketing Board (Board) to respond to all comments received from us or any other source.

1. Section 144.1. Electronic methods—general.—Statutory authority; Consistency with statute.

Subsection (b) states:

 A manufacturer of an electronic testing instrument shall make available upon request to the Board a complete instrument operation and maintenance manual and further information as requested.

 We question why the regulation requires actions by manufacturers. We recommend that the Board rewrite this provision so that it requires actions by the entities the Board regulates, such as certified testers. Alternatively, the Board should explain its authority to regulate and take enforcement actions against manufacturers.

2. Section 144.1a. Definitions.—Consistency with statute; Clarity.

 The statute sets forth requirements for certified testers at 31 P. S. § 700j-602, including the requirement that component tests must be ''. . . conducted by a tester certified by the board.'' The regulation defines ''certified tester'' as:

 A Board certified technician as referenced in § 144.2 (relating to certification and approval requirements) operating electronic instruments or a person certified to perform specific reference methods for determining the components in raw milk, or both. (Emphasis added.)

 We have two concerns. First, we question how the phrase ''or a person certified to perform specific reference methods for determining the components in raw milk, or both'' is consistent with the statute at 31 P. S. § 700j-602. Is the person referenced in this phrase also certified by the Board? The Board should explain how this phrase is consistent with the statute and what specific certification it references.

 Second, for clarity, we suggest that the definition directly reference 31 P. S. § 700j-602, rather than the general reference to Section 144.2 of the regulation.

3. Section 144.6. Required records.—Clarity.

 Subsections (b) through (e) appear to be a list of required records. However, there is no indication after Subsection (a) that Subsections (b) through (e) are the actual list of required records. We recommend that the Board review this section to clarify what records are required.

4.  Section 144.6. Required records and Section 144.7. Summary record required.—Consistency with statute.

 Under 31 P. S. § 700j-602, the statute states:

 The certified tester shall keep an accurate record of all tests made, and copies of such record shall be kept for a period of two (2) years by him and by the milk dealer. (Emphasis added.)

 However, provisions throughout Sections 144.6 and 144.7 only require records to be kept for at least one year. We recommend that the Board review these one year record retention provisions in the regulation and explain how they are consistent with the statute.


[Pa.B. Doc. No. 11-1156. Filed for public inspection July 8, 2011, 9:00 a.m.]

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