N.Y. Comp. Codes R. & Regs. Tit. 1§ 2.3 - General permits; permit to sell raw milk; permit to ship into the state; permit to produce milk

(a) General permits. Every person who operates a transfer station, receiving station, bulk tank unit or milk plant (other than a plant at which melloream or frozen desserts are manufactured) in the State shall hold a general permit issued by the commissioner. A general permit holder, a person holding a frozen desserts license pursuant to Agriculture and Markets Law section 71-d ("frozen desserts licensee") and a person holding a melloream license pursuant to Agriculture and Markets Law section 50-g ("melloream licensee") shall:

(1) if in control of the assembly of the milk shall:

(i) assign to each dairy farmer who produces milk assembled by the permit holder an identification number;

(ii) employ a certified milk inspector and ensure that he properly carries out his duties;

(iii) arrange to have the required samples of prepasteurized milk taken from dairy farms from which such prepasteurized milk is received, in accordance with section 2.6 of this Part, tested and analyzed by a licensed technician at an officially designated laboratory to determine compliance with the standards set forth in section 2.8 of this Part. The permit holder, frozen desserts licensee and melloream licensee shall, if requested, accurately inform the commissioner when samples will be taken from any dairy farm from which prepasteurized milk is received prior to having such samples taken;

(iv) arrange to have the required inspections done of dairy farms from which prepasteurized milk is received, in accord with section 2.5 of this Part;

(v) receive no prepasteurized milk from a new source unless the commissioner has been notified at least four days in advance and such source has been inspected by an employee of the Division of Milk Control and found to be in compliance with sections 2.9 through 2.28, 2.58 and 2.65 of this Part; and

(vi) receive no commingled milk from a permit holder who controls the assembly of the milk from whom milk is not received on a regular basis, unless a sample thereof has been properly submitted to a licensed technician for analysis at an officially designated laboratory and determined to be in compliance with the applicable standards set forth in section 2.8 of this Part;

(2) receive or handle no prepasteurized milk from a dairy farm:

(i) which has not been properly inspected as required in section 2.5 of this Part;

(ii) which is not in substantial compliance with sections 2.9 through 2.28 and sections 2.58 and 2.65 of this Part;

(iii) whenever the prepasteurized milk exceeds the temperature standard or fails to meet the abnormal milk standard set forth in section 2.8 of this Part, or whenever the milk is otherwise adulterated within the meaning of this Title or of the Agriculture and Markets Law;

(iv) for the period of time specified in section 2.7(e) of this Part, when the prepasteurized milk fails to meet the drug standard set forth in section 2.8 of this Part, except that a general permit holder who manufactures a non-Grade A storable milk product, goat milk product or sheep milk product may receive prepasteurized milk that does not exceed said drug standard, notwithstanding the provisions of section 2.7(e) of this Part, if such prepasteurized milk has been analyzed as provided for in the provisions of section 2.7(b)(2) of this Part and found to be in compliance with the applicable provisions of section 2.8 of this Part. The general permit holder and the dairy farmer who produced such prepasteurized milk shall have requested and received approval from the commissioner prior to the receipt of such prepasteurized milk by such general permit holder;

(v) whenever three of the last five samples of prepasteurized milk exceed the bacterial limit set forth in section 2.8 of this Part; and

(vi) whenever three of the last five samples of prepasteurized milk exceed the somatic cells standard set forth in section 2.8 of this Part or whenever the dairy farmer is required to enroll in the Quality Milk Promotion Services Program and has failed to do so;

(3) receive, deal in, sell, offer for sale or otherwise distribute no prepasteurized milk, commingled milk, milk, lowfat milk, skim milk, milk product, goat milk, goat milk product, sheep milk, sheep milk product, melloream or frozen dessert from a person who does not hold a required permit or license issued pursuant to this Title or the Agriculture and Markets Law;

(4) receive no commingled milk that exceeds the drug standard, as provided in section 2.7(b)(1) of this Part and shall, when commingled milk exceeds the drug standard, immediately notify the commissioner in writing that the commingled milk has failed to meet such standard;

(5) prepare, maintain and make available, for at least two years, unless otherwise provided, in a form and at a location satisfactory to the commissioner, the following records and materials:

(i) a record of bacteriological examinations of the water supply of:

(a) dairy farms, the prepasteurized milk of which is assembled by the permit holder, frozen dessert licensee or melloream licensee, in accord with section 2.15 of this Part; and

(b) the permit holder's, frozen dessert licensee's or melloream licensee's milk plant, in accord with section 2.35 of this Part;

(ii) a record of the results of required analyses of samples of prepasteurized and commingled milk for compliance with the standards set forth in section 2.8 of this Part. The records of results of analyses of samples of prepasteurized milk shall set forth the:

(a) name and identification number of the dairy farmer who produced the prepasteurized milk from which the sample was taken;

(b) date of sampling;

(c) date of analysis;

(d) method used and result of analysis; and

(e) signature and license number of the licensed technician who analyzed the sample;

(iii) a record of each inspection and reinspection of dairy farms conducted pursuant to section 2.5 of this Part. Each inspection report shall set forth:

(a) the name and identification number of the dairy farmer;

(b) the date of the inspection or reinspection;

(c) the signature of the certified milk inspector who conducted the inspection; and

(d) whether the dairy farm was in substantial compliance with sections 2.9 through 2.28 and sections 2.58 and 2.65 of this Part;

(iv) a record of the name of the owner, identification number and address of all dairy farms from which prepasteurized milk is assembled by the permit holder, frozen dessert licensee or melloream licensee;

(v) for analyses made by means of reading direct microscopic smears, the direct microscopic smears, and retain for at least 30 days;

(vi) if operating a milk plant at which frozen desserts are manufactured:

(a) a daily record of receipts and disposition of all ingredients, other than flavors, cocoa, chocolate, fruits, nuts, malted milk, confectionery, stabilizers, emulsifiers, microcrystalline cellulose and sweetening agents, and a monthly inventory of each ingredient for which a record is kept which reflects the name and address of the person from whom each ingredient was received;

(b) for each frozen dessert containing fat, a record setting forth the name of the frozen dessert, the name of the fat and the percent of fat contained in each frozen dessert;

(c) a daily record of each frozen dessert manufactured or received, the volume of each frozen dessert manufactured or received, and the fat content of each frozen dessert manufactured or received; and

(d) a biannual report setting forth the amount of each kind of frozen dessert manufactured, the ingredients used in the manufacture of each frozen dessert, and other information deemed necessary by the commissioner for the administration of this Part. A report shall be submitted to the commissioner on or before January 20 and on or before July 20 of each year, giving the required information for each of the six calendar months preceding such date;

(vii) such other records or materials required to be kept pursuant to the provisions of this Part;

(6) if operating a milk plant, receiving station, or a plant where frozen desserts are manufactured:

(i) handle and process and/or manufacture milk, lowfat milk, skim milk, milk products, goat milk, goat milk products, sheep milk, sheep milk products, frozen desserts and melloream in substantial compliance with sections 2.30 through 2.65 of this Part and with Appendices 3-11 to this Part; and

(ii) designate a processing plant superintendent ("PPS") and ensure that he properly carries out his duties;

(7) receive, deal in, sell, offer for sale or otherwise distribute no milk, lowfat milk, skim milk, milk products, goat milk, goat milk products, sheep milk, sheep milk products, frozen desserts or melloream that do not comply with the applicable standards and requirements set forth in this Title and in the Agriculture and Markets Law, or that are in violation of any provision of this Title or of the Agriculture and Markets Law;

(8) receive, deal in, sell, offer for sale or otherwise distribute no milk, lowfat milk, skim milk, non-storable milk products, goat milk, non-storable goat milk products, sheep milk, non-storable sheep milk products or frozen desserts:

(i) the prepasteurized milk component of which has not been produced in substantial compliance with the provisions of this Part applicable to the production of Grade A prepasteurized milk;

(ii) the prepasteurized milk component of which does not meet the standards for prepasteurized milk for Grade A use set forth in section 2.8 of this Part;

(iii) which has not been processed or manufactured in compliance with the provisions of this Part applicable to the processing or manufacture of Grade A milk, lowfat milk, skim milk, non-storable milk products, goat milk, non-storable goat milk products, sheep milk, and non-storable sheep milk products; and

(iv) which do not meet the standards for such foods set forth in section 2.8 of this Part;

(9) properly carry out such other responsibilities and duties required of a general permit holder, frozen dessert licensee or melloream licensee pursuant to the provisions of this Part.

(b) Permit to sell raw milk.

(1) Every person who sells, offers for sale or otherwise makes available raw milk for consumption by consumers shall hold a permit to sell raw milk issued by the commissioner. A person who holds a permit to sell raw milk may sell, offer for sale or otherwise make available raw milk only:

(i) directly to a consumer;

(ii) on the dairy farm where such raw milk is produced;

(iii) in a bottle or in a single service container mechanically filled and capped as set forth in this Part or in a container provided by the consumer filled in his presence; and

(iv) if at the point of sale a sign is conspicuously posted, easily capable of being read, from such point, stating: "NOTICE: Raw milk sold here. Raw milk does not provide the protection of pasteurization."

(2) A person who holds a permit to sell raw milk shall:

(i) ensure that the dairy farm at which the raw milk was produced is in substantial compliance with the provisions of this Part applicable to the production of Grade A prepasteurized milk;

(ii) sell, offer for sale or make available no raw milk when and as required in section 2.7(c) and (d) of this Part;

(iii) sell, offer for sale or make available no raw milk that exceeds the applicable temperature, drugs or abnormalities standard set forth in section 2.8 of this Part;

(iv) sell or offer for sale no raw milk that is in violation of any provision of this Title or of the Agriculture and Markets Law; and

(v) enroll in the Quality Milk Promotion Services when and/or as required by sections 2.7 and 2.60 of this Part.

(c) Permit to ship prepasteurized milk, milk, lowfat milk, skim milk, non-storable milk products, goat milk and sheep milk products into the State.

(1) Every person who ships prepasteurized milk, milk, lowfat milk, skim milk, non-storable milk products, goat milk or sheep milk into the State shall hold a permit issued by the commissioner. Such permit shall be known as a "permit to ship milk and milk products into the State." A permit shall expire on June 30 and an application for renewal shall be made no later than June 1. An application for renewal shall be made upon a blank prepared under the direction of the commissioner and shall set forth the information deemed necessary by the commissioner for the administration of this Part.

(2) A person who holds a permit to ship milk or milk products into the State shall:

(i) if shipping prepasteurized milk into the State:

(a) ensure that the prepasteurized milk if to be used in Grade A milk, Grade A lowfat milk, Grade A skim milk, Grade A non-storable milk products, Grade A goat milk or Grade A sheep milk, was produced on dairy farms in substantial compliance with rules and regulations substantially the same as the applicable provisions of this Part regulating the production of Grade A prepasteurized milk and that such prepasteurized milk complies with and meets the provision of section 2.8 of this Part for prepasteurized milk for Grade A use;

(b) ensure that the prepasteurized milk if not to be used in Grade A milk, Grade A lowfat milk, Grade A skim milk, Grade A non-storable milk products, Grade A goat milk or Grade A sheep milk was produced on dairy farms in substantial compliance with rules and regulations substantially the same as the applicable provisions of this Part regulating the production of non-Grade A prepasteurized milk and that such prepasteurized milk complies with and meets the provisions of section 2.8 of this Part for prepasteurized milk for non-Grade A use; and

(c) if shipping prepasteurized milk into the State for use in Grade A milk, Grade A lowfat milk, Grade A skim milk, Grade A non-storable milk products, Grade A goat milk or Grade A sheep milk, have an acceptable milk sanitation compliance and enforcement rating given by a State milk sanitation rating officer certified by FDA and have an Interstate Milk Shippers rating of 90 percent or higher;

(ii) if shipping milk, lowfat milk, skim milk, non-storable milk products, goat milk or sheep milk into the State shall:

(a) ensure:

(1) that the prepasteurized milk in such foods was produced on dairy farms in substantial compliance with rules and regulations substantially the same as the provisions of this Part regulating the production of Grade A prepasteurized milk;

(2) that such foods were processed or manufactured in substantial compliance with rules and regulations substantially the same as the provisions of this Part regulating the processing and manufacture of Grade A milk, lowfat milk, skim milk, non-storable milk products, goat milk and sheep milk;

(3) that such foods comply with and meet applicable provisions and standards set forth in the Agriculture and Markets Law and this Title; and

(4) that such foods are not in violation of the provisions of the Agriculture and Markets Law or of this Title nor is their possession, sale or distribution in violation of such law or of this Part;

(b) ensure that such foods have been processed or manufactured in a plant that currently possesses:

(1) an acceptable milk sanitation compliance and enforcement rating given by a state milk sanitation rating officer certified by the FDA; and

(2) an Interstate Milk Shippers rating of 90 percent or higher.

(3) A person who holds a permit to ship milk and milk products into the State shall also ensure that every milk tank truck containing commingled milk that he ships or causes to be shipped into the State contains documents available to the commissioner which set forth:

(i) the name and address of the person who holds the permit;

(ii) the name and address of the milk hauler; and

(iii) the weight of the commingled milk.

(d) Permit to produce milk.

Every dairy farmer who produces prepasteurized milk shall hold a permit to produce milk issued by the commissioner. A dairy farmer who holds a permit to produce shall:

(1) if his prepasteurized milk is to be used in milk, lowfat milk, skim milk, non-storable milk products, goat milk or sheep milk, operate his dairy farm in substantial compliance with the provisions of this Part applicable to the production of Grade A prepasteurized milk;

(2) if his prepasteurized milk is to be used in storable milk products, operate his dairy farm in substantial compliance with the provisions of this Part applicable to the production of non-Grade A prepasteurized milk;

(3) produce no prepasteurized milk that does not comply with the Agriculture and Markets Law;

(4) enroll in the Quality Milk Promotion Services Program ("QMPS") when and as required in section 2.6(d) of this Part;

(5) review the Milk and Dairy Beef Residue Prevention Protocol, when and as required in section 2.7(e)(2) of this Part;

(6) deal in, sell, offer for sale or otherwise distribute no prepasteurized milk when and as required in section 2.7(c), (d) and (e) of this Part; and

(7) deal in, sell, offer for sale or otherwise distribute no prepasteurized milk that exceeds the temperature standard or fails to meet the abnormal milk standard set forth in section 2.8 of this Part.

(e) Granting, denying the renewal of, revoking and suspending permits.

(1) The provisions of this section shall apply to the granting, denying the renewal of, revoking and suspending permits required pursuant to this Part, unless otherwise provided in this Part. An applicant for a general permit, a permit to sell raw milk, a permit to ship milk and milk products into the State or a permit to produce shall file an application upon a blank prepared under the direction of the commissioner and shall set forth the information deemed necessary by the commissioner for the administration of this Part. Except for a permit to ship milk and milk products into the State, a permit shall be effective until revoked or suspended. The commissioner may decline to grant or renew a permit, or may suspend or revoke a permit, upon due notice and opportunity for a hearing, when he is satisfied by substantial evidence that the applicant or permit holder:

(i) is not capable of complying with the requirements of this Part or of the Agriculture and Markets Law; or

(ii) has failed to comply with or has violated the requirements of this Part or of the Agriculture and Markets Law.

(2) A permit may be summarily suspended without a hearing if the commissioner has reason to believe that raw milk, prepasteurized milk, commingled milk, milk, lowfat milk, skim milk, milk products, goat milk, goat milk products, sheep milk or sheep milk products produced, possessed, processed, manufactured, sold, offered for sale or otherwise distributed by the permit holder create or appear to create, if consumed, an immediate hazard to human health. After summarily suspending a permit, the commissioner shall schedule a hearing to consider revocation of the permit, which hearing shall be held as soon as reasonably possible after the date the permit was suspended. The summary suspension shall be effective until the permit holder satisfies the commissioner that no raw milk, prepasteurized milk, commingled milk, milk, lowfat milk, skim milk, milk product, goat milk, goat milk product, sheep milk or sheep milk product creates, or appears to create, an immediate hazard to the public health.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 1§ 2.3