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RULES AND REGULATIONS

Title 7--AGRICULTURE

DEPARTMENT OF AGRICULTURE

[7 PA. CODE CH. 59]

Milk Sanitation

[26 Pa.B. 3129]

   The Department of Agriculture (Department) amends §§ 59.1 and 59.22 (relating to definitions; milk dating).

   The statutory authority for these amendments is the act of July 2, 1935 (P. L. 589, No. 210) (31 P. S. §§ 645--660f) (act), which authorizes the Department to regulate production, processing, storage and packaging of milk to safeguard human health.

   This rulemaking amends prior regulatory authority by extending the sell by date which must appear on containers of pasteurized milk by 2 days. Previously, the containers were required to bear a sell by date that did not exceed 12 days from midnight of the date upon which the milk was pasteurized. This order changes that 12-day limit to 14 days.

   The amendments also clarify that the sell by date requirement is applicable to containers of pasteurized milk at food establishments. The terms ''food establishment'' and ''retail food store'' (a subset of food establishments) are defined as they are defined in the Food Act (31 P. S. §§ 20.1--20.18). The incorporation of these statutorily-defined terms will eliminate confusion over whether there is some intended distinction between establishments and food establishments. There is not.

Regulatory Review

   The amendments meet the general requirements of Executive Order 1996-1, ''Regulatory Review and Promulgation.''

   The amendments are a reasonable, cost-effective approach to preserving the competitiveness of this Commonwealth's dairy industry in interstate commerce. The changes accomplished by these amendments may be implemented at the option of individual milk processors. If a milk processor prefers to use a sell by date of less than 14 days, it is free to do so.

   These amendments do not put public health or safety at risk. Neighboring states that have established milk sell by periods of 14 days or longer have not experienced adverse public health, milk quality or milk demand consequences. In fact, a significant number of states have declined to impose any milk sell by date requirements on their milk processors.

Comments

   Notice of proposed rulemaking was published at 25 Pa.B. 5510 (December 2, 1995), and provided for a 30-day public comment period.

   The Independent Regulatory Review Commission (IRRC) offered no objections, comments or suggestions.

   Comments were received from a major food service company from New York, a dairy, a supermarket assistant manager and Representative William R. Lloyd, Jr. These comments, and the Department's responses, follow.

   A New York-based food service company that regularly purchases milk from a Pennsylvania dairy complained that most of its current customer base has, at one time or another, asked why the milk obtained and distributed by the food service company has a sell by date of 12 days or less, while most other available milk has a sell by date of 14 days or less. The commentator added:

It is our belief that our sales are limited by this 12-day limit, and we can grow our business at a faster rate if the sell by date is allowed to go to 14 days. In addition, due to the guarantee that we give our customers of at least 6 code days on delivery, we will cut our throw outs by 75% with the additional 2 days.

   The Erie-based dairy with which the food service company does business also added its support for the amendments, noting that it had an ongoing problem keeping two separate inventories--one for New York and one for Pennsylvania. The dairy stated that this situation puts its milk at a competitive disadvantage with milk processed in New York.

   A supermarket assistant manager objected to these amendments on several grounds. He believed the amendments would increase the amount of sour milk returned to his store by dissatisfied customers, and questioned whether smaller stores (convenience stores) would refrigerate their milk well enough and turn over their milk inventories often enough to prevent the degrading of milk quality Statewide.

   Along similar lines, Representative Lloyd inquired as to whether other states with milk sell by periods of 14 days or more experienced any measurable increase in consumer complaints regarding milk quality and any measurable decrease in the demand for pasteurized milk as a result.

   The Department reviewed the impact of various states' sell by periods on the demand for pasteurized milk, and cannot correlate any inverse relationship between demand for pasteurized milk and the sell by date for pasteurized milk in a given state. Demand for pasteurized milk does not decrease as the maximum sell by date increases.

   Ohio requires a milk processor to establish its own quality assurance date--based upon the quality of the pasteurized milk it produces. Ohio may require a milk processor to adopt a particular sell by date if frequent consumer complaints occur.

   With the exception of New York City (which has its own 9-day sell by date), New York State does not impose any sell by date on its milk processors. The majority of these milk processors voluntarily affix sell by dates of between 10 and 14 days on their containers of pasteurized milk. New York State does not enforce any sell by date, and views the sell by date as a tool by which processors and retailers can efficiently rotate their inventories.

   New Jersey allows a milk processor to conduct bacteriologic and organoleptic analysis of its pasteurized milk and submit its proposed sell by date for approval by its Department. That Department must approve a sell by date for each milk processor, and may reduce a milk processor's sell by date, if necessary.

   In summary, most states defer, to some extent, to their milk processors to establish reasonable sell by dates for containers of pasteurized milk, but reserve authority to establish a uniform maximum sell by period or particular sell by periods for milk processors whose pasteurized milk is the subject of complaints. In these respects, the amendments established by this order are consistent with other states. They impose a maximum sell by date, leaving individual milk processors free to adopt shorter sell by periods as they deem appropriate.

   The milk processor has a strong business interest in ensuring the sell by date affixed to its containers of pasteurized milk will result in the consumer receiving milk of acceptable quality.

   The Department is satisfied the changes accomplished by this order will not jeopardize the overall quality of the pasteurized milk reaching consumers and will not work to decrease demand for pasteurized milk. The regulatory changes resulting from this order will make this Commonwealth's dairy industry more competitive in interstate commerce.

Fiscal Impact

Commonwealth

   These amendments will impose no costs and have no fiscal impact upon the Commonwealth.

Political Subdivisions

   These amendments will impose no costs and have no fiscal impact upon political subdivisions.

Private Sector

   These amendments will impose no costs on the private sector. Milk processors need only adjust the sell by date stamping apparatus on their packaging machinery in order to take advantage of the extension of the pasteurized milk sell by date established by these amendments. The amendments will have a favorable fiscal impact on this Commonwealth's dairy industry by making its product more competitive in interstate commerce.

General Public

   The amendments will impose no costs and have no fiscal impact upon the general public.

Paperwork Requirements

   The amendments are not expected to result in an appreciable increase in paperwork.

Contact Person

   Further information is available by contacting the Department of Agriculture, Attention: James C. Dell, Chief, Division of Milk Sanitation, Bureau of Food Safety and Laboratory Services, 2301 North Cameron Street, Harrisburg, PA 17110-9408.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 20, 1995, the Department submitted a copy of the notice of proposed rulemaking published at 25 Pa.B. 5510 to IRRC and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.

   In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.

   These final-form regulations were deemed approved by the House Committee and the Senate Committee on June 11, 1996, and were deemed approved by IRRC on June 11, 1996, in accordance with section 5(b.3) of the Regulatory Review Act.

Findings

   The Department finds that:

   (1)  Public notice of intention to adopt the amendments encompassed by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and that the comments received were considered.

   (3)  The amendments meet the requirements of Executive Order 1996-1, ''Regulation Review and Promulgation.''

   (4)  The adoption of the amendments in the manner provided by this order is necessary and appropriate for the administration of the authorizing statute.

Order

   The Department, acting under the authorizing statute, orders that:

   (a)  The regulations of the Department, 7 Pa. Code Chapter 59, are amended by amending §§ 59.1 and 59.22 to read as set forth at 25 Pa.B. 5510.

   (b)  The Secretary of Agriculture shall submit this order and 25 Pa.B. 5510 to the Office of General Counsel and to the Office of Attorney General for approval as required by law.

   (c)  The Secretary of Agriculture shall certify this order and 25 Pa.B. 5510 and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect upon publication in the Pennsylvania Bulletin.

CHARLES C. BROSIUS,   
Secretary

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 3237 (July 6, 1996).)

   Fiscal Note: Fiscal Note 2-101 remains valid for the final adoption of the subject regulations.

[Pa.B. Doc. No. 96-1089. Filed for public inspection July 5, 1996, 9:00 a.m.]



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