CHAPTER 679
S.P. 1069 - L.D. 2662
Emergency preamble. Whereas, Acts of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, the statutory definitions and provisions relating to the production and sale of milk and milk products need to be revised for efficient administration and enforcement of the laws; and
Whereas, the efficient administration and enforcement of the laws is vital to the interests of the citizens of this State; and
Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
PART A
Sec. A-1. 7 MRSA §2900 is enacted to read:
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Aseptically processed and packaged. "Aseptically processed and packaged" means hermetically sealed in a container and thermally processed to render the product free of microorganisms capable of reproducing in the product under normal nonrefrigeration conditions of storage and distribution.
2. Bulk milk hauler and sampler. "Bulk milk hauler and sampler" means a person who collects samples and transports raw milk from a farm or raw milk products to or from a farm, milk plant, receiving station or transfer station and has in that person's possession a permit from any state to sample such products.
3. Commissioner. "Commissioner" means the Commissioner of Agriculture, Food and Rural Resources or the commissioner's duly authorized agent.
4. Dairy or dairy farm. "Dairy or dairy farm" means any place or premises where one or more cows, goats or sheep are kept and from which milk or milk products are provided, sold or offered for sale.
5. Farm cheese. "Farm cheese" means cheese manufactured within the State on the dairy farm on which the milk is produced from milk that is heat treated. "Farm cheese" does not include cheese that has been aged at a temperature above 35 degrees Fahrenheit for at least 60 days.
6. Heat treated. "Heat treated" means processed by heating every particle of milk to a temperature of 145 degrees Fahrenheit for at least 30 minutes using a double boiler.
7. Milk. "Milk" means the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows, goats or sheep.
8. Milk distributor. "Milk distributor" means any person who offers for sale or sells to another person any milk or milk products in their final form.
9. Milk plant. "Milk plant" means any place, premises or establishment where milk or milk products are collected, handled, processed, stored, pasteurized, aseptically processed, bottled or otherwise prepared for distribution.
10. Milk producer. "Milk producer" means any person who operates a dairy farm and provides, sells or offers milk or milk products for sale.
11. Milk products. "Milk products" means cream, light cream, light whipping cream, heavy cream, heavy whipping cream, whipped cream, whipped light cream, sour cream, acidified sour cream, cultured sour cream, milk, butter, evaporated milk, sweetened condensed milk, nonfat dry milk solids, half-and-half, sour half-and-half, acidified sour half-and-half, cultured sour half-and-half, concentrated milk and milk products, skim milk, reconstituted or recombined milk and milk products, low-fat milk, light milk, reduced fat milk, homogenized milk, frozen milk concentrate, eggnog, cultured milk, buttermilk, yogurt, cottage cheese, creamed cottage cheese, acidified milk, low-sodium milk, lactose-reduced milk, aseptically processed and packaged milk and milk products, milk with added safe and suitable microbial organisms and any other milk product, frozen dairy dessert or frozen dairy dessert mix, cheese or other product designated as a milk product by the commissioner that is made by the addition or subtraction of milkfat or addition of safe and suitable optional ingredients for protein, vitamin or mineral fortification.
12. Milk transport tank. "Milk transport tank" means a vehicle, including the truck and tank, used by a bulk milk hauler and sampler or milk tank truck driver to transport bulk shipments of milk from a milk plant, receiving station or transfer station to another milk plant, receiving station or transfer station.
13. Milk transportation company. "Milk transportation company" means a company responsible for a milk transport tank.
14. Not pasteurized. "Not pasteurized" means any milk or milk product that has not been subjected to the temperature and time requirements of pasteurization using equipment designed for pasteurization or has not been aseptically processed and packaged.
15. Pasteurization or pasteurized. "Pasteurization" or "pasteurized" or a similar term means the process of heating every particle of milk or milk product in properly designed and operated equipment to the temperature specified and for the time period specified in any rule adopted pursuant to section 2910 or any pasteurization process that has been recognized by the United States Food and Drug Administration to be equally effective and that is approved by the commissioner.
16. Person. "Person" means any individual, plant operator, partnership, corporation, company, firm, trustee, association or institution.
17. Receiving station. "Receiving station" means any place, premise or establishment where raw milk is received, collected, handled, stored or cooled and prepared for further transporting.
18. Transfer station. "Transfer station" means any place, premises or establishment where milk or milk products are transferred directly from one milk transport tank to another.
Sec. A-2. 7 MRSA §2901, as amended by PL 1999, c. 481, §1, is repealed.
Sec. A-3. 7 MRSA §2901-A, as amended by PL 1999, c. 362, §7, is further amended to read:
§2901-A. Standards and labeling
Notwithstanding any other requirements of this chapter, milk and milk products, defined in accordance with standards then in effect that have been adopted by the United States Government and labeled in conformity with labeling requirements then in effect that have been adopted by the United States Government, are considered to conform with the definitions and labeling requirements set forth in this chapter; except that containers of milk and cream packaged in Maine must also bear the name and address of the Maine licensed milk dealer distributor and sufficient information to identify the milk plant where packaged.
Sec. A-4. 7 MRSA §2901-B, sub-§§1 and 2, as enacted by PL 1993, c. 663, §1, are amended to read:
1. Notice by producer. If the criteria for use of the certification trademark include absence of the use of rbST, a milk producer in this State who sells milk to a dealer milk plant who that uses the trademark must notify that milk dealer plant before using rbST within the milking herd of the producer's dairy farm. Notification to the dealer milk plant must be made at least 45 days before using rbST. Notification must be made by certified mail and sent to the dealer's milk plant's employee responsible for milk procurement at the plant location where the milk is processed. For purposes of this section, "possession of rbST" means use.
2. Failure to provide notice. If a Maine milk producer fails to give the dealer milk plant the notice required in subsection 1, the dealer milk plant is not required to comply with the notice requirements of section 2903-A before refusing to continue to purchase milk under any contract with that milk producer.
Sec. A-5. 7 MRSA §2901-C is enacted to read:
A person required to obtain a permit or license under this section, section 2902-A or rules adopted under section 2910 or pursuant to former section 2902 may not sell, transport or transfer milk or milk products prior to obtaining the appropriate license or permit.
1. Milk distributor license. A milk distributor shall obtain a license from the commissioner and shall renew that license annually. The license fee is based on the annual volume of milk or milk products sold or distributed in the State. The annual fee may not be lower than $25 or exceed $300. The commissioner shall deposit all money received from milk distributor license fees into the General Fund.
2. Bulk milk hauler and sampler permit. A bulk milk hauler and sampler who is based in this State shall obtain a permit from the commissioner and shall renew that permit annually. For the purposes of this section, "based in this State" means a bulk milk hauler and sampler who does not have a permit from another state to sample raw milk or raw milk products.
3. Receiving station permit. A person who owns or operates a receiving station shall obtain a permit for that receiving station from the commissioner and shall renew that permit annually.
4. Transfer station permit. A person who owns or operates a transfer station shall obtain a permit for that transfer station from the commissioner and shall renew that permit annually.
5. Milk transportation company permit. A person who owns or operates a milk transportation company shall obtain a permit for the transportation company from the commissioner and shall renew that permit annually.
Sec. A-6. 7 MRSA §2902, as repealed and replaced by PL 1999, c. 362, §8, is repealed.
Sec. A-7. 7 MRSA §2902-A, sub-§§1, 2 and 5, as enacted by PL 1987, c. 700, §2, are amended to read:
1. Sale prohibited. Following the adoption of and in accordance with rules established according to this section, no operator of a commercial dairy farm may sell any milk to a milk dealer, distributor unless the operator holds a valid operating permit for the farm issued by the commissioner.
2. Issuance of operating permits. The commissioner, in accordance with the Maine Administrative Procedure Act, Title 5, chapter 375, shall adopt rules for the issuance of operating permits. These rules shall must establish permitting procedures and standards for permit issuance. In establishing these procedures and standards, the commissioner shall seek consistency with applicable federal milk regulations and guidelines and with the provisions of agreements among states relating to the interstate shipment of milk. These permits shall are not be transferable with respect to persons or locations or both.
5. Exemption. An operator of a commercial dairy farm located outside this State who holds a similar operating permit for that farm from a regulatory agency in another state may be exempted from this permit requirement by the commissioner.
Sec. A-8. 7 MRSA §2903-A, as enacted by PL 1981, c. 574, §2, is amended to read:
1. Notice of refusal. A milk dealer plant owner or operator who has a verbal or written contract with a milk producer for the purchase of milk shall may not refuse to continue to purchase milk under the contract without first giving notice to the producer in accordance with this section. The dealer milk plant owner or operator shall give written notice of intent to refuse to purchase to the producer and to the commissioner. The notice shall must state the date upon which the refusal will become effective.
A. Except as provided in paragraph B, the refusal shall does not become effective until 30 days following the milk dealer's plant owner or operator's notice of intent to refuse to purchase milk from the producer.
B. If a milk dealer's plant owner or operator's refusal to continue to purchase milk is based on failure of the producer's milk to meet the milk dealer's plant owner or operator's quality criteria or the Interstate Milk Shipments Conference Standards, whichever is applicable, the refusal may become effective on less than 30 days' notice. Upon issuance of notice of intent to refuse purchase because of failure to meet the criteria or standards, the dealer milk plant owner or operator shall cause a sample of the refused milk to be taken immediately and transferred to the commissioner for testing in the state central laboratory. Upon receipt of the test results that the sample does not meet the milk dealer's plant owner or operator's quality criteria or the Interstate Milk Shipments Conference Standards, whichever is applicable, refusal to continue to purchase shall become becomes effective immediately. Notice shall must be given to the producer by the dealer milk plant owner or operator immediately upon his the milk plant owner or operator's receipt of the test results. The state central laboratory shall mail the results of the test to the milk dealer plant owner or operator and milk producer.
2. Challenge of refusal; adjudicatory hearing. If the producer or dealer the milk plant owner or operator desires to question the refusal to purchase or the test given under subsection 1, paragraph B, he either may do so within 10 days after receipt of the notice from the dealer milk plant owner or operator of the test results by requesting, in writing, that the commissioner conduct an adjudicatory hearing pursuant to the Maine Administrative Procedure Act, Title 5, chapter 375. If a request for hearing is made by the milk dealer plant owner or operator, refusal to purchase shall does not become effective until the hearing is held and a decision upholding the dealer's milk plant owner or operator's refusal has been issued by the commissioner. The decision of the commissioner as to the reasonableness of the dealer's milk plant owner or operator's refusal to purchase shall be is considered final agency action for purposes of the Maine Administrative Procedure Act.
Sec. A-9. 7 MRSA §2906, as amended by PL 1999, c. 362, §12, is further amended to read:
The district attorney for the county in which any violation of sections 2901-A to 2902-A 2904-A has occurred shall, if requested, assist the commissioner in suits arising under those sections.
Sec. A-10. 7 MRSA §2907, as amended by PL 1999, c. 362, §13, is further amended to read:
The District Court and the Superior Court have concurrent jurisdiction in cases arising under sections 2901-A to 2902-A 2904-A.
Sec. A-11. 7 MRSA §2908, as amended by PL 1999, c. 362, §14, is further amended to read:
Any firm, person, corporation or society who sells milk or cream milk products in the State without the license or licenses permits provided in section 2902 2901-C and 2902-A or who violates any of the provisions of sections 2901-A to 2902-A 2904-A or neglects, fails or refuses to comply with any of the provisions of those sections and the rules, regulations and standards of identity and quality issued thereunder pursuant to section 2910 commits a civil violation for which the following forfeiture may be adjudged:
1. First violation. For the first violation, a forfeiture not to exceed $100 of not less than $250 and not more than $500; and
2. Second violation. For each subsequent violation, a forfeiture not to exceed $200 of not less than $500 and not more than $1,000.
Sec. A-12. 7 MRSA §2910, last ¶, as enacted by PL 1999, c. 362, §15, is amended to read:
Rules adopted pursuant to this section are major substantive rules as defined in Title 5, chapter 375, subchapter II-A, except that amendments to the rules to maintain consistency with the official standards known as the Pasteurized Milk Ordinance, as issued by the Secretary of the United States Department of Health and Human Services, Food and Drug Administration, are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. Amendments to the rules may not prohibit the sale of unpasteurized milk or milk products in the State.
Sec. A-13. 7 MRSA §2910-A is enacted to read:
§2910-A. Injunctions by commissioner
In addition to any other remedy for the enforcement of sections 2901-C to 2904-A or a rule, order or decision by the commissioner adopted or issued pursuant to this chapter, the commissioner is authorized to apply to the Superior Court for a preliminary or permanent injunction restraining any person from violating any provision of sections 2901-C to 2904-A or any rule, order or decision of the commissioner adopted or issued pursuant to this chapter. The Superior Court has jurisdiction upon hearing and for good cause shown to grant a preliminary or permanent injunction. In case of violation of an injunction issued under this section, the court may cite the person for contempt of court. The existence of either civil or criminal remedies is not a defense in this proceeding. The commissioner is not required to give or post a bond when making an application for an injunction under this section.
PART B
Sec. B-1. 7 MRSA §2952, last ¶, as repealed and replaced by PL 1975, c. 517, §1, is amended to read:
The commission shall hold regular meetings on the 3rd Thursday of each calendar month. The chairman chair shall call special meetings of the commission whenever requested in writing by 2 or more members of the commission.
Sec. B-2. 7 MRSA §2953-A, sub-§6 is enacted to read:
6. Compensation. Members serving pursuant to subsection 4-A, paragraph A, subparagraphs (2) and (4) are compensated for attendance at Northeast Interstate Dairy Compact meetings in amounts not to exceed those set forth in Title 3, section 2, except that employees of the State who are compensated as part of their employment do not receive additional compensation under this subsection.
Sec. B-3. 7 MRSA §2954, sub-§1, as amended by PL 1995, c. 2, §1, is further amended to read:
1. Commission empowered to establish prices; public hearing. The commission is vested with the power to establish and change, after investigation and public hearing, the minimum wholesale and retail prices to be paid to producers, dealers and stores for milk received, purchased, stored, manufactured, processed, distributed or otherwise handled within the State. The commission shall hold a public hearing prior to the establishing or changing of such minimum prices. The commission may proceed, however, under the emergency rule-making provisions of Title 5, section 8054 without making findings of emergency when the only changes to be made in the minimum prices are to conform with the orders of any federal or other agency duly authorized by law to establish or negotiate producer prices or are to respond to other conditions affecting prevailing Class I, Class II and Class III prices in southern New England, or reflect the Milk Handling Tax as determined by Title 36, chapter 716. Title 5, section 8054, subsection 3, the 2nd sentence, does not apply to minimum prices adopted under the previous sentence. Due notice of the public hearing must be given by publishing notice as provided in Title 5, chapter 375. The commission shall hold such a public hearing not less frequently than once every 12 months to determine whether the minimum wholesale and retail prices then established should be changed. In addition to the data received through the implementation of the information gathering procedures of its rules as a basis for its determinations, the commission shall solicit and seek to receive oral and written testimony at hearings to determine whether the minimum wholesale and retail prices then established should be changed and whether the proposed minimum wholesale and retail prices are just and reasonable.
Sec. B-4. 7 MRSA §2954-A, sub-§1, as enacted by PL 1985, c. 172, is amended to read:
1. First 15 days. On or before the 5th day after the end of the calendar month in which delivery was made, each dealer shall pay each of his that dealer's producers for milk received from the producer during the first 15 days of that month at a rate that is not less than the most recently published Federal Order No. 1, Zone 21 blend price northeast marketing area milk marketing order statistical uniform price for Penobscot County.
Sec. B-5. 7 MRSA §2956, 2nd ¶, as repealed and replaced by PL 1975, c. 517, §5, is amended to read:
Each dealer shall furnish his to that dealer's producers a statement of the amount of milk purchased, the price per hundredweight or quart pound, the total amount paid for each pay period, the itemized deductions for transportation and other services, the percentages of milk in each classification and the butterfat test, protein test and other solids test when weight and test method of payment is used, and shall pay his Maine producers the established minimum price for the classification components of the milk according to its usage adjusted for butterfat, protein and other solids and shall pay the northeast marketing area milk marketing order producer price differential announced for Suffolk County, Massachusetts.
Sec. B-6. 7 MRSA §3151, first and 5th ¶¶, as enacted by PL 1983, c. 573, §4, are amended to read:
The Legislature finds that among Maine's dairy farmers, prices received for milk differ substantially, and that these differences arise in part from a dual marketing system whereby approximately 1/2 the milk produced in Maine is marketed in Maine subject to the price control authority of the Maine Milk Commission, Maine market, while the other 1/2 is marketed to handlers selling in southern New England, commonly known as the Boston market, subject to the price regulations of the New England Federal Milk Marketing Order, Milk Order No 1 northeast marketing area milk marketing order.
The Legislature finds that dairy farms in Aroostook, Washington and northern Penobscot Counties presently operate at signigicantly significantly higher costs because of their remoteness from markets and supplies; that they face greater risks because they operate on a closer margin; that their markets are less secure; and that negative changes in the overall economy have a magnified effect in the northern Maine region.
Sec. B-7. 7 MRSA §3152, sub-§1-A, as amended by PL 1991, c. 266, §4, is further amended to read:
1-A. Base minimum price. "Base minimum price" means that part of the minimum Class I, Class II and Class III prices established by the Maine Milk Commission pursuant to chapter 603 which that corresponds to Class I, Class II and Class III prices established pursuant to the New England Milk Marketing Order northeast marketing area milk marketing order, excluding any amounts established by the Maine Milk Commission to reflect the increased costs of production pursuant to section 2954, subsection 2, paragraph A.
Sec. B-8. 7 MRSA §3152, sub-§1-B, as amended by PL 1991, c. 266, §5, is further amended to read:
1-B. Adjusted base minimum price. "Adjusted base minimum price" means that part of the minimum Class I, Class II and Class III prices established by the Maine Milk Commission pursuant to chapter 603 which that corresponds to Class I, Class II and Class III prices established pursuant to the New England Milk Marketing Order northeast marketing area milk marketing order, plus any amounts established by the Maine Milk Commission to reflect the increased costs of production pursuant to section 2954, subsection 2, paragraph A.
Sec. B-9. 7 MRSA §3152, sub-§§2 and 3, as enacted by PL 1983, c. 573, §4, are amended to read:
2. Boston market dealer. "Boston market dealer" means any dealer as defined in subsection 4 who purchases milk from producers subject to the price regulations of the New England Milk Marketing Order northeast marketing area milk marketing order.
3. Boston market producer. "Boston market producer" means any Maine milk producer selling to a dealer marketing milk subject to the New England Milk Marketing Order northeast marketing area milk marketing order, or any agricultural cooperative that buys milk from or handles milk for such a producer and sells it to such a dealer.
Sec. B-10. 7 MRSA §3152, sub-§4-A, as enacted by PL 1987, c. 447, §5, is amended to read:
4-A. Eligible marketing cooperative. "Eligible marketing cooperative" means an association of milk producers organized to negotiate producer prices higher than the minimum producer prices established pursuant to the New England Milk Marketing Order northeast marketing area milk marketing order and which the commissioner has determined will not, through its operation, evade, impair or undermine the purposes of this chapter. Notwithstanding Title 4, section 1151, subsection 2 and Title 5, section 10051, subsection 1, the commissioner may revoke the eligible status of a marketing cooperative upon a determination that it has through its operation evaded, impaired or undermined the purposes of this chapter.
Sec. B-11. 7 MRSA §3152, sub-§8-A, as amended by PL 1991, c. 266, §6, is further amended to read:
8-A. Over-order premium. "Over-order premium" means that part of the minimum Class I, Class II and Class III prices established by the Maine Milk Commission pursuant to chapter 603, which that exceeds the applicable Class I, Class II and Class III prices established pursuant to the New England Milk Marketing Order northeast marketing area milk marketing order as adjusted to reflect the increased costs of production pursuant to section 2954, subsection 2, paragraph A.
Sec. B-12. 7 MRSA §3153, sub-§2, ¶A, as amended by PL 1999, c. 210, §1, is further amended to read:
A. Effective June 1, 1984 January 1, 2000, each Maine market dealer shall, on a monthly basis, calculate for its Maine market producers the amount of payment at the adjusted base minimum price that would be payable to its Maine market producers according to the blend price calculated using that dealer's utilization rate, and the amount of payment at the base minimum price that would be due its Maine market producers according to the blend price calculated using the applicable utilization rate component prices and producer price differential for Suffolk County, Massachusetts for the New England Milk Marketing Order northeast marketing area milk marketing order. Each Maine market dealer shall make an initial payment at the base minimum price to its Maine market producers according to the blend price calculated using the Federal Milk Order utilization rate or the Federal Milk Order Zone 1 blend price, whichever is greater, but shall comply in all other respects using established minimum component prices and the producer price differential for the northeast marketing area milk marketing order for Suffolk County, Massachusetts in accordance with chapter 603. Any additional payment at the adjusted base minimum price that would be due its Maine market producers pursuant to that dealer's applicable utilization rate must be made to the Maine Milk Pool. Based on the fact that northern Maine market producers presently operate at significantly higher costs because of their remoteness from markets and supplies, that they face greater risks because they operate on a closer margin and because their markets are less secure, payments to the Maine Milk Pool at the adjusted base minimum price attributable to northern Maine market producers must be reduced by 1/2 and those producers' initial payments under this section must be increased by the corresponding amounts. The commissioner shall adopt by rule such procedures as are necessary to implement this section.
Sec. B-13. 7 MRSA §3153, sub-§4, ¶A, as amended by PL 1991, c. 12, is further amended to read:
A. If any Boston market producer whose farm is located within 140 miles of Boston receives a plant price, excluding deductions or additions imposed by the so-called Louisville Plan as defined by Part 1001, Federal Milk Order No. 1, Section 1001.61, Subsections c and d, or any amendment thereto, northeast marketing area milk marketing order or imposed by any other seasonal balancing plan subsequently adopted by Federal Order No. 1 the northeast marketing area milk marketing order, which that is an amount greater than the amount initially payable to Maine market producers under subsection 2, paragraph A, the commissioner shall credit that additional amount against the redistribution from the Maine Milk Pool to which that producer would otherwise be entitled in order to avoid potential inequities arising from equal redistribution;
Sec. B-14. Retroactivity. This Part applies retroactively to January 1, 2000.
Emergency clause. In view of the emergency cited in the preamble, this Act takes effect when approved.
Effective April 12, 2000.
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