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PROPOSED RULEMAKING

MILK MARKETING BOARD

[ 7 PA. CODE CH. 143 ]

Transactions Between Dealers and Producers

[40 Pa.B. 3127]
[Saturday, June 12, 2010]

 The Milk Marketing Board (Board) proposes to add § 143.29 (relating to weighing and sampling of direct load milk) and to amend § 143.46 (relating to producer receipt for farm bulk milk) to read as set forth in Annex A.

Purpose of Proposed Rulemaking

 The purpose of this proposed rulemaking is to establish regulations governing the weighing and sampling of milk when it is loaded directly from the milking parlor or milkhouse on a dairy farm into a movable bulk milk tanker for transportation. Most milk produced on dairy farms in this Commonwealth is pumped into bulk tanks on the farm for cooling and storage and is picked up every day or every other day and loaded onto bulk milk tankers for transport to the processor. Current Board regulations establish procedures to ensure accurate weighing and sampling of this milk for purposes of payment to producers and require a receipt for the milk to be left with the producer at the time of pickup. While the number of dairy herds in this Commonwealth is decreasing, the average size of dairy herds in this Commonwealth is increasing. Many dairy herds in this Commonwealth produce enough milk to fill a semitrailer bulk milk tanker in 24 hours or less. In these cases, it is more efficient and cost effective to rapidly cool the milk and pump it directly onto a bulk milk tanker rather than storing the milk in a bulk tank for later pickup and transport. The existing regulations rely upon bulk tank calibration charts to determine the volume of milk and require agitation by means of the bulk tank agitator prior to sampling of milk in a stationary onfarm bulk tank and, therefore, will not work for milk loaded directly into mobile bulk tankers. Currently there are several farms in this Commonwealth direct-loading their milk, using a variety of methods for weighing and sampling that milk. The proposed rulemaking establishes uniform procedures to ensure the accurate weighing and sampling of this milk and will also amend the requirements for the producer's receipt for direct load milk.

Summary of Proposed Rulemaking

 Proposed § 143.29 defines ''direct load milk'' as ''[p]roducer milk that is loaded directly from the farm milking parlor into a bulk milk tanker and is not weighed or sampled, or both, by means of an onfarm bulk tank.'' The proposed rulemaking provides the following: (1) allows for weighing of direct load milk either by scales or by means of a mass flow meter and sets out the procedures that shall be followed for each method to ensure accuracy; (2) establishes procedures for sampling of milk, including proper agitation before sampling to ensure a representative sample is obtained; and (3) allows the Board to approve other methods of weighing/measuring, agitation and sampling of direct load milk on a case-by-case basis.

 The proposed rulemaking adds § 143.46(c), which requires additional information pertaining to the method of weighing and sampling to be included on the producer's receipt. This proposed subsection also relaxes the requirement that the receipt be left at the farm at the time of pick-up, since in many cases the milk will not be weighed or sampled before leaving the farm.

Statutory Authority

 Section 307 of the Milk Marketing Law (act) (31 P. S. § 700j-307) provides the Board with the authority to adopt and enforce regulations necessary or appropriate to carry out the provisions of the act.

Public Hearing

 On December 15, 2004, the Board, after due notice, conducted a public hearing to receive comments on the proposed rulemaking. Among the attendees were representatives of the Department of Agriculture's Bureau of Ride and Measurement Standards and the Division of Milk Sanitation, milk sanitarians from this Commonwealth, milk marketing cooperatives, the Pennsylvania Farm Bureau and Board staff. As a result of the discussion and comments at that public hearing, the proposed rulemaking was drafted and circulated among the attendees to receive further comment. The proposed rulemaking was further revised as a result of that process. Board staff then conducted onfarm visits with several producers in this Commonwealth who are already direct-loading their milk for transport. Staff observed the procedures currently being used on these farms and received comments from these producers regarding the proposed rulemaking. Based upon these observations and discussions, a final draft was prepared and circulated among the interested parties, including the producers, for their review. The proposed rulemaking is the result of the foregoing process.

Fiscal Impact

 The proposed rulemaking will have no fiscal impact on the majority of dairy producers who still store milk in bulk tanks on the buyers or haulers of that milk. The proposed rulemaking should not have a negative fiscal impact on those few producers, haulers, weighers/samplers or dealers who will be affected by the regulations. These affected persons may see a positive fiscal impact in the form of time savings and increased efficiency by being able to eliminate the step of pumping milk from bulk tanks into tankers for transport.

Paperwork Requirements

 The proposed rulemaking requires additional information pertaining to the method of weighing and sampling to be included on the producer's receipt for milk picked up from farms, but relaxes the requirement that the receipt be left at the farm at the time of pick-up.

Effective and Sunset Dates

 The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin. There is not a sunset date.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 27, 2010, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the House and Senate Committees on Agriculture and Rural Affairs. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.

Public Comment

 Interested persons are invited to submit written comments, suggestions or objections concerning the proposed rulemaking to the Chief Counsel, Milk Marketing Board, 2301 North Cameron Street, Harrisburg, PA 17110 within 30 days following publication in the Pennsylvania Bulletin.

RICHARD KRIEBEL, 
Chairperson

Fiscal Note: 47-14. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 7. AGRICULTURE

PART VI. MILK MARKETING BOARD

CHAPTER 143. TRANSACTIONS BETWEEN DEALERS AND PRODUCERS

TESTING

 (Editor's Note: The following section is new and printed in regular type to enhance readability.)

§ 143.29. Weighing and sampling of direct load milk.

 (a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

Bulk milk tanker or tanker

 (i) A mobile bulk container used to transport milk or fluid milk products in bulk from a dairy farm, or to or from a dairy processing plant which is designed to be towed by a motor vehicle.

 (ii) The term includes equipment and accessories related to the mobile bulk container.

Bureau—The Bureau of Ride and Measurement Standards, of the Department.

Department—The Department of Agriculture of the Commonwealth.

Direct load milk—Producer milk that is loaded directly from the farm milking parlor into a bulk milk tanker and is not weighed or sampled, or both, by means of an onfarm bulk tank.

Milk Sanitation Division—The Bureau of Food Safety and Laboratory Services, Milk Sanitation Division, of the Department.

 (b) General.

 (1) For purposes of payment to producers, direct load milk shall be weighed and sampled in accordance with the provisions of this section.

 (2) Sampling and weighing of direct load milk shall take place as close as practicable to the farm and shall take place in this Commonwealth or in a state with a reciprocal agreement for recognition of direct load weighing and sampling methods.

 (3) An in-line temperature recorder and indicating thermometer must be located between the chiller and the bulk milk tanker to record the temperature of the milk.

 (4) Direct load milk shall be weighed and sampled by a weigher/sampler certified by the Board for direct load milk pickup.

 (5) This section does not replace or supersede the requirements, standards and procedures for weighing and sampling of milk established by the Bureau or the Milk Sanitation Division.

 (c) Weighing. Direct load milk weight shall be established by type-approved scales of appropriate size and location, tested and approved by the Bureau or by a mass flow meter certified to be in compliance with National Institute of Standards Technology Handbook 44 and tested and approved by the Bureau.

 (1) Weighing by scales.

 (i) Scale weight shall be certified by a person licensed as a public weighmaster by the Bureau.

 (ii) Snow, ice, mud and other debris shall be removed from the bulk milk tanker before weighing on scales.

 (iii) Weighing methods must comply with 3 Pa.C.S. Chapter 41 (relating to Consolidated Weights and Measures Act).

 (iv) The weighmaster shall complete and provide to the weigher/sampler, at the time of weighing, a weigh slip approved by the Bureau. Weigh slips with the weighmaster's license number shall be deemed to be completed by the weighmaster, in accordance with 3 Pa.C.S. § 4153 (relating to preparation of weighmaster's certificate).

 (A) A licensed public weighmaster may not enter on a weighmaster's certificate issued by the weighmaster weight values which the weighmaster has not personally determined. The weighmaster may not make entries on a weighmaster's certificate issued by another person.

 (B) A weighmaster's certificate shall be prepared to show clearly what weights were actually determined.

 (C) If the certificate form provides for the entry of gross, tare and net weights in any case in which only the gross, the tare or the net weight is determined by the weighmaster, the weighmaster shall strike through or otherwise cancel the printed entries for the weights not determined or computed.

 (D) If gross and tare weights are shown on a weighmaster's certificate and both of these were not determined on the same scale and on the day for which the certificate is dated, the weighmaster shall identify on the certificate the scale used for determining each weight and the date of each determination.

 (v) A standard empty weight may be established for a tanker that is regularly used to haul direct load milk from a producer.

 (A) The standard empty weight shall be established at least every month.

 (B) The producer shall maintain a record for each tanker. A copy of the record shall be kept with each tanker and available on demand with the following information:

 (I) The tanker serial number.

 (II) The manufacturer's rated capacity of the tanker.

 (III) The date the tanker was put into service hauling direct load milk of the producer.

 (IV) The date and location of the scale where the standard empty weight was last established

 (V) Whether the tanker was equipped with a spare tire when the standard empty weight was last established.

 (C) After the standard empty weight is established, the tanker must be equipped with the same spare tire, or not be equipped with a spare tire, whichever was the case when the standard empty weight was last established.

 (D) If tires are changed, maintenance is performed that may affect the weight of the tanker or other equipment or utensils are attached to the tanker, the standard empty weight of the tanker must be established before the tanker is placed back into service.

 (vi) A tanker for which a standard empty weight has not been established shall be weighed before each loading.

 (A) The empty tanker weight may be established by unhooking the tanker on the scales and weighing the tanker alone.

 (B) A tractor and empty tanker combination may be weighed together if either of the following occur:

 (I) The tractor and tanker will remain coupled until after the milk is loaded onto the tanker at the farm and the tractor and loaded tanker combination is reweighed.

 (II) The tractor and loaded tanker combination is weighed at or near a dairy in this Commonwealth before unloading at the dairy, and the tractor and empty tanker combination is reweighed after unloading at or near the dairy where unloaded.

 (vii) To establish milk weight, subtract the weight of the empty tanker or combination from the weight of the loaded tanker or combination.

 (A) The loaded tanker weight may be established by unhooking the tanker on the scales and weighing the tanker alone.

 (B) If a loaded tanker will not be unhooked from the tractor when weighing the loaded tanker, the weight of the tractor shall be established independently before hooking on to the loaded tanker. The tractor weight shall be added to the empty weight of the tanker to establish the empty weight of the combination.

 (viii) When a tractor is weighed, either alone or in combination with an empty or loaded tanker, the weigher/sampler shall account for the weight of the fuel as follows:

 (A) If the tractor has traveled 15 miles or more between weighing empty and weighing loaded, the weigher/sampler shall account for the weight of the fuel consumed by subtracting 20 pounds from the empty weight of the tractor for every 15 miles traveled.

 (B) If the tractor has been refueled between weighing empty and weighing loaded, the weigher/sampler shall account for the additional weight of the fuel by adding 7.15 pounds to the weight of the tractor for every gallon of fuel added.

 (2) Meter weight.

 (i) Only a food grade, 3-A approved, volumetric flow meter capable of direct pound computations approved by the Board and by the Milk Sanitation Division may be used for establishing milk weight.

 (ii) A meter shall be installed by an installer or repair person registered by the Bureau.

 (iii) Meters must be National Type Evaluation Program approved, tested and approved by the Bureau and certified for custody transfer.

 (iv) The Bureau will annually inspect, test and approve these meters.

 (v) The meter shall be positioned at a stationary point between the chiller and the milk tanker.

 (vi) The weigher/sampler shall permanently record on paper:

 (A) The manufacturer's rated capacity of the tanker.

 (B) The date and time the milk tanker began and ended filling.

 (C) The meter weight of the milk that entered the milk tanker.

 (D) The date that the meter was last verified for accuracy.

 (3) Other weighing or measuring devices, or both. Other weighing or measuring devices, or both, may be approved on a case-by-case basis by the Bureau and the Board.

 (d) Sampling.

 (1) Samples must comply with §§ 143.23, 143.26 and 143.27 (relating to quantity of sample; refrigeration of samples; and transportation of samples).

 (2) Samples shall only be taken after agitation sufficient to ensure that the milk is in a homogenous condition by one of the following methods:

 (i) In-tanker agitation.

 (A) Agitation by a mechanical device placed inside the tanker may be used if the agitation method and equipment are approved by the Board.

 (B) Sampling takes place immediately when the agitator is turned off.

 (ii) Over-the-road agitation.

 (A) Agitation by the normal movement of the milk inside the tanker during transport over the road may be used only when the tanker is filled to no more than 97% of the tanker manufacturer's rated volumetric capacity.

 (B) A sensor, metering device or other measurement strategy, coupled with an automatic shut-off or alarm system, shall be used to ensure that the tanker is filled to not more than 97% of its rated capacity.

 (C) Agitation must take place in not less than a 3-mile trip during which at least three stops and starts shall have occurred.

 (D) Sampling shall take place without delay, but less than 5 minutes after the tanker has stopped, and the sample shall be taken from the hatch in accordance with the guidelines of the Milk Sanitation Division.

 (iii) Other agitation methods. Other agitation methods, such as air agitation, may be used if the agitation method has been certified as effective in at least five repeatable trials and if the method is approved by the Milk Sanitation Division. The Board will provide testing and certification of other agitation methods on a case-by-case basis.

 (3) Other sampling methods. Other sampling methods, including in-line sampling devices, may be approved by the Board on a case-by-case basis.

MISCELLANEOUS PROVISIONS

§ 143.46. Producer receipt for farm bulk milk.

*  *  *  *  *

(c) For direct load milk weighed and sampled under § 143.29 (relating to weighing and sampling of direct load milk), the following provisions apply:

(1) In addition to the information required in subsection (a), the bill of lading or similar document must also contain:

(i) When milk weight is established by scales, a copy of the weigh slip required under § 143.29(c) (1)(iv).

(ii)  When milk weight is established by a flow meter, a copy of the information required under § 143.29(c)(2)(vi).

(iii) The method of sampling.

(iv) The method of agitation, if applicable.

(2) If weighing and sampling was done at the farm, the information shall be left with the producer at the time of pick-up. If weighing or sampling was done at a distant location, the information shall be provided to the producer within 24 hours of pick-up, or at the time the next tanker is picked up, whichever is earlier.

[Pa.B. Doc. No. 10-1087. Filed for public inspection June 11, 2010, 9:00 a.m.]



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