PRINTER'S NO. 797
No. 705 Session of 1997
INTRODUCED BY CURRY, YOUNGBLOOD, CLARK, MELIO, C. WILLIAMS,
BATTISTO, TRELLO AND ROEBUCK, MARCH 11, 1997
REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS,
MARCH 11, 1997
AN ACT
1 Providing for milk testing and certification; transferring
2 functions from the Milk Marketing Board to the Department of
3 Agriculture; imposing penalties; providing for sanctions; and
4 making a repeal.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Milk Testing
9 and Certification Law.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Board." The Milk Marketing Board.
15 "Certificate." A certificate issued under section 7 which
16 authorizes an individual to:
17 (1) test milk; or
18 (2) weigh and sample milk.
1 "Certified tester." An individual who holds a certificate to
2 test milk.
3 "Certified weigher and sampler." An individual who holds a
4 certificate to weigh and sample milk.
5 "Consumer." A person that purchases milk for consumption.
6 The term includes the Commonwealth, a political subdivision and
7 an agency or instrumentality of either. The term does not
8 include a dealer.
9 "Dealer." A person that handles milk within this
10 Commonwealth for processing and manufacture and further sale,
11 anywhere. The term does not include a producer that delivers
12 milk only to a dealer.
13 "Department." The Department of Agriculture of the
14 Commonwealth.
15 "Handle." To:
16 (1) buy, sell, barter, acquire, store, process, consign,
17 receive or transport milk; or
18 (2) control milk as an owner, buyer, seller, consignee,
19 consignor, bailee, bailor, broker or factor.
20 "Milk." Any of the following:
21 (1) Fluid milk.
22 (2) Fresh, sour or storage cream.
23 (3) Skim milk.
24 (4) Lowfat milk.
25 (5) Flavored milk or milk drink.
26 (6) Buttermilk.
27 (7) Ice cream mix.
28 (8) Condensed or concentrated whole or skim milk. This
29 paragraph does not include concentrated whole or skim milk
30 contained in a hermetically sealed can.
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1 "Producer." A person that produces milk.
2 "Store." A mercantile establishment which sells or
3 distributes milk.
4 "Subjects of transfer." Personnel, appropriations,
5 allocations, documents, records, equipment, materials, rights
6 and obligations utilized or accruing in connection with
7 transferred functions.
8 Section 3. Department.
9 (a) General rule.--The department has the following powers
10 and duties:
11 (1) To administer this act.
12 (2) To prosecute and cooperate in the prosecution of
13 violations of this act.
14 (3) To promulgate regulations to implement this act.
15 (b) Transfer of functions.--The functions of the board under
16 Article VI of the act of April 28, 1937 (P.L.417, No.105), known
17 as the Milk Marketing Law, are transferred to the department.
18 (c) Effect of transfer.--
19 (1) The board's subjects of transfer are transferred to
20 the department with the same force and effect as if they had
21 originally belonged to the department.
22 (2) The civil service status of employees of the board
23 shall not be affected by transfer to the department.
24 Section 4. Certification required.
25 (a) Dealing.--A dealer may not buy or receive milk from a
26 producer nor sell nor deliver milk to a store or consumer on the
27 basis of or with reference to the amount of butterfat or
28 appropriate milk components contained in the milk unless all of
29 the following are met:
30 (1) The butterfat or component tests of the milk is
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1 conducted by a certified tester.
2 (2) The samples taken for testing purposes are made as
3 follows:
4 (i) By a certified tester or a certified weigher and
5 sampler.
6 (ii) According to the method prescribed in section 5
7 or in regulations promulgated under this act.
8 (b) Pickups.--An individual may not pick up milk from a farm
9 unless the individual is a certified tester or a certified
10 weigher and sampler.
11 (c) Penalty.--A person that violates this section commits a
12 misdemeanor of the second degree and shall, upon conviction, be
13 sentenced to pay a fine of $5,000 or to imprisonment for not
14 more than two years, or both.
15 Section 5. Testing.
16 (a) Type.--
17 (1) A dealer that buys or receives milk from a producer
18 on the basis of or with reference to the amount or percentage
19 of butterfat contained in the milk, as determined by the
20 method commonly known as the "Babcock Test," shall make the
21 test at least once every 16 days.
22 (2) If a daily test is made on milk and the average of
23 several tests is used as a basis of settlement, there shall
24 also be a composite sample taken covering the period of the
25 first half of the month and a composite sample taken covering
26 the period of the last half of the month; and the samples
27 shall be held intact on the premises for a period of not less
28 than ten days after the rendering of a statement to the
29 producers for milk delivered during each period, in order to
30 make possible a check test.
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1 (b) Procedure.--
2 (1) The milk from each producer must be represented by a
3 composite sample taken from the entire delivery of each of
4 the several lots of milk bought or received from the producer
5 and must cover a period of not more than 16 days. The
6 composite sample to which a suitable preservative has been
7 added must be made up of aliquot parts taken from each of the
8 several lots of milk from each producer concerned. Composite
9 samples of all producers concerned must cover the same period
10 of time.
11 (2) A person taking a sample of milk, either from the
12 aliquot part of each lot of milk sampled or from the
13 composite lot of milk sampled, must thoroughly stir or mix
14 the contents of each container immediately before the sample
15 is taken. A weigh tank or container from which the aliquot
16 part is taken for composite samples must not have a
17 partition, division or strainer which will prevent such
18 thorough stirring or mixing.
19 (3) Each composite sample must be held in an airtight
20 bottle, plainly labeled with the name or number of the
21 producer whose milk the composite sample represents. The rack
22 or container where the samples are held must be plainly
23 labeled showing the date of the first and last day of the
24 period covered by the composite samples.
25 (4) For a "Babcock Test," all of the following apply:
26 (i) The "Babcock" reading must be made when the fat
27 has a temperature of 135 degrees Fahrenheit to 145
28 degrees Fahrenheit.
29 (ii) Quantities must be as follows:
30 (A) For milk other than cream, 17.6 cubic
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1 centimeters.
2 (B) For cream, 9 grams or 18 grams. In all tests
3 of cream, the cream must be weighed and not measured
4 into the test bottle.
5 (iii) Glassware and weights which have been
6 inspected and approved by the Department of Internal
7 Affairs must be used.
8 (5) If the amount or percentage of butterfat is
9 determined by any method other than the "Babcock Test,"
10 utensils and instruments which have been inspected and
11 approved by the department must be used.
12 (c) Testing periods.--The department may require that the
13 composite samples be tested at the receiving station where the
14 milk is received or by a licensed laboratory within five days
15 from the end of the period when the composite samples were
16 taken. After the samples have been tested, their residues must
17 be held intact and in condition suitable to test on the premises
18 where they are tested for a further period of not less than ten
19 days after the rendering of a statement to the producer for milk
20 delivered during this ten-day period, in order to make possible
21 a check test.
22 (d) Notice.--Within two days after the test under subsection
23 (b), the dealer shall notify the producer of the result of the
24 test. The notice shall state the period of time during which the
25 composite samples were taken. Notice under this subsection shall
26 be given by posting of the results of the tests continuously for
27 ten days in a conspicuous place in the plant or receiving
28 station or by delivery of written notice to the producer.
29 (e) Discretionary testing.--The department shall make check
30 tests and other reasonable tests as advisable for the public
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1 welfare. The department may require additional samples or
2 additional composite samples. The department may, by regulation,
3 require tests and testing procedures for components other than
4 butterfat.
5 (f) Records.--The certified tester shall keep an accurate
6 record of all tests made. Copies of the record shall be kept for
7 two years by the certified tester and by the dealer.
8 Section 6. Payment for milk.
9 (a) Determination.--A dealer shall determine weight, measure
10 and butterfat and appropriate milk component content of milk.
11 Payment for milk shall be made upon the basis of weight, measure
12 or butterfat or appropriate milk component content, or any
13 combination.
14 (b) Statement.--A dealer buying or receiving milk from a
15 producer shall furnish to the producer a written statement
16 showing the amount of milk delivered daily during the period for
17 which payment is made and the average butterfat or appropriate
18 milk component tests of the milk delivered for the period. The
19 statement shall set forth information required by department
20 regulation or order. The statement shall be furnished
21 periodically, at least monthly, at the time of payment
22 prescribed by department regulation or order. Upon written
23 request of a majority of the producers who deliver milk to a
24 receiving station or plant receiving milk, in lieu of the
25 periodic statement, a daily written statement of weights shall
26 be given to the producer.
27 (c) Improper treatment.--
28 (1) A person may not use as the basis of payment for
29 milk any amount or percentage of butterfat or appropriate
30 milk components which has been ascertained from a sample
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1 containing milk that has been treated to cause it to test
2 lower or higher than the milk from which it was taken.
3 (2) A person that violates paragraph (1) commits a
4 misdemeanor of the second degree and shall, upon conviction,
5 be sentenced to pay a fine of $5,000 or to imprisonment for
6 not more than two years, or both.
7 Section 7. Certification.
8 (a) Certificate of proficiency.--
9 (1) An individual who desires to apply for a certificate
10 shall apply to the department for a certificate of
11 proficiency.
12 (2) The application must be accompanied by a fee of
13 $5.00.
14 (3) The applicant must pass an examination in milk
15 testing or in milk weighing and sampling, as appropriate. The
16 department shall prepare and conduct the examination.
17 (4) The applicant must demonstrate to the department
18 good character and the ability to act competently as a
19 certified tester or a certified weigher and sampler. Under
20 this paragraph, the department shall consider the grounds for
21 sanctions under section 8(a).
22 (5) Upon approval of the application, the department
23 shall issue a certificate of proficiency.
24 (b) Certificate.--A holder of a certificate of proficiency
25 may apply for a certificate on a form prescribed by the
26 department. The application must be submitted by December 1 and
27 must be accompanied by a fee of $5.00. Upon approval of the
28 application, the department shall issue a certificate.
29 (c) Renewal.--A certificate issued under subsection (b) is
30 for the term of one calendar year. It is subject to annual
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1 renewal under subsection (b).
2 (d) Posting.--A certificate shall be posted and kept in
3 plain view in the plant in which the certified tester or
4 certified weigher and sampler is employed.
5 (e) Prior licensing.--A license, permit or certificate which
6 is issued by the department under a statute repealed by the act
7 of April 28, 1937 (P.L.417, No.105), known as the Milk Marketing
8 Law, and which is in effect as of April 28, 1937, shall be
9 deemed a certificate issued under subsection (b).
10 (f) Transfer.--A certificate may not be assigned or
11 transferred.
12 Section 8. Sanctions.
13 (a) Grounds.--The department may suspend or revoke a
14 certificate if the holder does any of the following:
15 (1) Violates a provision of this act for the weighing,
16 measuring, testing or sampling of milk.
17 (2) Violates a regulation or order of the department
18 respecting weighing, measuring, testing or sampling of milk.
19 (3) Engages in a practice which results in any of the
20 following:
21 (i) Causes a producer to be underpaid for milk.
22 (ii) Causes a store or consumer to overpay for milk.
23 (iii) Defrauds or tends to defraud a producer, store
24 or consumer.
25 (b) Procedure.--Sanctions under subsection (a) are subject
26 to 2 Pa.C.S. Chs. 5 Subch. A (relating to practice and procedure
27 of Commonwealth agencies) and 7 Subch. A (relating to judicial
28 review of Commonwealth agency action).
29 Section 9. Prohibitions.
30 (a) General rule.--A person may not, intentionally,
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1 knowingly, recklessly or negligently do any of the following:
2 (1) Weigh, measure, sample or test milk, or cause milk
3 to be weighed, measured, sampled or tested in a manner which
4 causes or tends to cause loss or injury to a producer, store
5 or consumer.
6 (2) To make a false or misleading statement with respect
7 to the weight, measurement, sampling or testing of milk.
8 (b) Dealers.--A dealer may not do any of the following:
9 (1) Take, collect or use for testing purposes an unfair
10 or inaccurate sample.
11 (2) Underread, overread or erroneously manipulate a milk
12 test under this act or a regulation promulgated under this
13 act.
14 (3) Falsify the record of a test.
15 (4) Violate the procedures under section 5(b)(4) or (5).
16 (c) Penalty.--A person that violates this section commits a
17 misdemeanor of the second degree and shall, upon conviction, be
18 sentenced to pay a fine of $5,000 or to imprisonment for not
19 more than two years, or both.
20 Section 10. Repeal.
21 The act of April 28, 1937 (P.L.417, No.105), known as the
22 Milk Marketing Law, is repealed.
23 Section 11. Effective date.
24 This act shall take effect as follows:
25 (1) This section shall take effect immediately.
26 (2) Section 3(b) and (c) shall take effect in 60 days.
27 (3) The remainder of this act shall take effect in 180
28 days.
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