CHAPTER He-P 2700 MILK PRODUCERS, MILK PLANTS,
PRODUCER-DISTRIBUTORS, AND DISTRIBUTORS
Statutory Authority: RSA 184:30-h; RSA 184:85, III
PART He-P 2701 PRODUCERS, MILK PLANTS, PRODUCER-DISTRIBUTORS,
AND DISTRIBUTORS
He-P
2701.01 Definitions.
(a) “Bulk milk
hauler” means any person who weighs, measures, or samples a producer’s milk for
the purpose of determining the amount and quality as a basis for paying for
product requiring a license pursuant to RSA 184:76-a.
(b) “Commissioner”
means commissioner of the department of health and human services.
(c) “Critical item”
means an inspection item that when found out of compliance is more likely than
other violations to contribute to food contamination, illness, or environmental
health hazard.
(d) “Delegated
sampling surveillance officer” (DSSO) means a state regulatory person who has
been properly certified by a sampling surveillance officer to inspect bulk milk
haulers.
(e) “Department”
means “department” as defined in RSA 184:79, XIV.
(f) “Facility” means
the building(s) at one location where a permit or license has been issued to
conduct all of the required functions that are allowed within the permit or
license.
(g) “Federal rating”
means a “milk sanitation rating” as defined in RSA 184:79, XXI, that is
performed by a federally certified rating officer on Grade A milk plants,
producer-distributors, or milk producers.
(h) “Grade A” means
“grade A” milk products as defined in the Pasteurized Milk Ordinance pursuant
to Mil 301.01.
(i)
“Item” means a violation that is debited during an inspection.
(j) “Milk” means
“milk” as defined in RSA 184:79, XXII.
(k) “Milk
distributor” means “milk distributor” as defined in RSA 184:79, X.
(l) “Milk inspector”
means “milk inspector” as defined in RSA 184:79, XVI.
(m) “Milk plant”
means “milk plant” as defined in RSA 184:79, XIII.
(n) “Milk producer”
means “milk producer” as defined in RSA 184:79, IX.
(o) “Milk producer permit” means the permit that
is issued by the commissioner to any milk producer who is operating within the
state of New Hampshire.
(p) “Milk products”
means “milk products” as defined in RSA 184:79, XXIV.
(q) “Milk route”
means any company or individual who purchases milk from producers in this state
using the bulk tank collector system of collecting milk and requiring a permit
pursuant to RSA 184:60-a.
(r) “Milk sanitation
board” means “milk sanitation board” as established by RSA 184:80.
(s) “Milk sanitation
rating” means “milk sanitation rating” as defined in RSA 184:79, XXI.
(t) “Non-Grade A”
means milk products not listed as “Grade A” in Mil 301, including but not
limited to:
(1)
Ice cream;
(2)
Reduced fat ice cream;
(3)
Nonfat ice cream;
(4)
Soft cheese;
(5)
Hard cheese products;
(6) Butter;
(7)
Frozen yogurt; and
(8)
Gelato.
(u) “Producer-distributor”
means “producer-distributor” as defined in RSA 184:79, XI.
(v) “Sampling
surveillance officer” (SSO) means a state regulatory person who has been
certified by US Food and Drug Administration (FDA) to inspect bulk milk
haulers.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08;
ss by #12101, eff 2-3-17; ss by #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19;
ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
PART He-P 2702 APPLICATION, PERMITTING, AND
INSPECTION OF MILK PRODUCERS
He-P
2702.01 Application
Submission.
(a) A milk producer shall complete and submit a
signed and dated “Application for Milk Producer Permit” Form MPAPP (01-01-17)
application to the department for a producer permit required under RSA 184:88.
(b) Upon receipt of a signed and dated
“Application for a Milk Producer Permit” Form MPAPP (01-01-17) for a milk
producer permit, the commissioner shall approve or deny the application in
accordance with procedures set forth in RSA 184:89, RSA 184:90, RSA 184:91, and
He-P 2702.02 through He-P 2702.04.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08;
ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2702.02 Processing
of Applications.
(a) Applications shall be processed in accordance
with RSA 541-A:29.
(b) If all the items required by
He-P 2702.01 are received, the application shall be deemed to be complete.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08;
ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2702.03 Permit
Issuance and Duration.
(a) Following the receipt of a completed
application, if a sanitary inspection conducted in accordance with He-P 2702.09 results in a score of not less than 95
with no critical violations, a producer permit shall be issued.
(b) All producer permits shall remain in effect:
(1)
Unless suspended or revoked; or
(2)
Until 6 months have passed since operations have ceased at the permitted
facility, except in the case of permanent facilities located at fairgrounds or
other locations which are used at least annually.
(c) Producer permits shall not be transferable
with respect to persons or locations.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08;
ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P 2702.04 Denial of Permit
Applications.
(a) The department shall deny a producer permit
application if an applicant for a producer permit does not receive a minimum
score of 95 on an inspection with no critical item violations set forth in He-P 2702.10.
(b) Producer permit applications shall be denied
in accordance with RSA 184:90 and RSA 184:91.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00; ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2702.05 Milking
Facility Change of Ownership.
(a) If a milking facility changes ownership, a
producer permit shall not be issued until after completion of an inspection in
accordance with He-P 2702.09.
(b) A producer permit shall not be issued for a
change of ownership unless the inspection results in:
(1) A
minimum score of 95 on a sanitary inspection; and
(2)
There is no violation of any critical items set forth in He-P 2702.10.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2702.06 Suspension
of Milk Producer Permits; Reinstatement.
(a) The department shall suspend a producer
permit if:
(1)
The producer inhibits any inspection or investigation conducted by the department;
(2)
Milk from the producer’s farm has exceeded the standards for milk
quality pursuant to Mil 301.01 on any 3 out of the last 5 samples;
(3)
The producer offers for sale any milk contaminated with antibiotics;
(4)
The producer has 4 consecutive violations of the same item and has not
entered into a compliance agreement with the department;
(5)
The producer is making an insufficient amount of milk such that the milk
from the first milking is not properly agitated; or
(6)
The producer fails to comply with any compliance agreement entered into in accordance with He-P 2704.01.
(b) Producer permits shall be suspended in
accordance with RSA 184:90-a.
(c) Suspended producer permits shall be
reinstated in accordance with RSA 184:90-a and when an inspection of the
facility or analysis of the milk indicates that the violation(s) which resulted
in the suspension has been corrected.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2702.07 Revocation
of Milk Producer Permits; Reinstatement.
(a) The department shall revoke a milk producer’s
permit when the milk producer’s permit has been suspended 3 times within any
12- month period.
(b) The department shall revoke a milk producer’s
permit when the milk producer has offered for sale milk contaminated with
antibiotics 3 times within any 12- month period.
(c) The department shall revoke a producer permit
in accordance with RSA 541-A:30, II, RSA 184:90, and RSA 184:91.
(d) Any producer who has had a producer permit
revoked shall be prohibited from applying to renew the producer permit until 6
months following the date of the revocation.
(e)
Rehearings and appeals of decisions of the
commissioner, resulting from an adjudicative proceeding, shall be in accordance
with RSA 184:94.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2702.08 Effect
of Denial of Application, Suspension, or Revocation.
(a) Any applicant who has been denied a producer
permit shall not offer milk for sale to any milk plant or cooperative.
(b) If a producer permit has been suspended, the
milk producer shall cease operation immediately, in accordance with RSA
184:90-a.
(c) If a producer permit has been revoked, the
milk producer shall not offer milk for sale to any milk plant or cooperative.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2702.09 Inspection
of Dairy Farms.
(a) Inspections of all milk producers shall be
conducted in accordance with RSA 184:82, RSA 184:92, and Mil 301.
(b) Inspections shall be conducted:
(1)
Prior to issuance of a producer permit;
(2) At
least twice each year in accordance with RSA 184:92; and
(3)
Whenever the department has reason to believe a condition exists that
places the producer in non-compliance with Mil 301, RSA 184, or He-P 2700.
(c) When violations of critical item are found
during an inspection, the department shall conduct a follow-up inspection.
(d)
When only non-critical violations are found during an inspection, the
next inspection shall take place within 6 months.
(e) If any item is debited 3 consecutive times, a
warning letter shall be issued to the milk producer informing them that their
producer permit shall be suspended unless one of the following is complied
with:
(1) An
inspection conducted by the department showing the item or items outlined in
the warning letter have been corrected. This inspection shall occur within 21
days from the date of this letter but not before the lapse of 3 days; or
(2)
The producer enters into a compliance agreement with the department to
correct the item or items outlined in the warning letter prior to the producer
permit being suspended.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2702.10 Critical
Items. On the “Dairy Farm Inspection” report
contained in the Pasteurized Milk Ordinance incorporated by reference in Mil
301.01, the following shall be considered critical items:
(a) Item 1a: Abnormal Milk;
(b) Item 8a - c: Water Supply - 5 point violation which includes:
(1)
Improperly constructed or protected wells;
(2)
Improper submerged inlets;
(3)
Cross connections between safe and unsafe water supplies; and
(4) Water supply does not meet bacterial
standards found in the Pasteurized Milk Ordinance pursuant to Mil 301.01(a);
(c) Item 10a: cleaning of utensils and equipment,
when marked in conjunction with Item 11a: Sanitization of Utensils and Equipment;
(d) Item 15d, e, or g: drugs and extra-label
drugs properly labeled and used; and
(e) Item 18a or c: cooling of milk.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
PART He-P 2703 APPLICATION, LICENSING, AND INSPECTION
OF IN-STATE AND OUT-OF-STATE MILK PLANTS, PRODUCER-DISTRIBUTORS, AND
DISTRIBUTORS
He-P
2703.01 Application
Submission.
(a) All applicants for licensure under RSA 184:84
shall complete and submit to the department a signed and dated application
“Application for Milk Sanitation License” MSLAPP (01-01-17) obtained from the
department which shall be typewritten or legibly printed in ink.
(b) The applicant shall provide the following
along with the application:
(1) A
specific product list;
(2) A
copy of the results of the latest federal rating or the facility’s Interstate
Milk Shippers code number if the facility is an out-of-state grade A milk plant
or producer-distributor;
(3) A
copy of the latest facility inspection conducted by the state or local agency
with regulatory authority over the facility if the applicant is an out-of-state
non-grade A milk plant or producer-distributor;
(4)
Payment made by a credit card on line at
http://www.dhhs.nh.gov/dphs/fp/index.htm, a check or a money order for the
applicable fees in accordance with He-P 2706.01 ; and
(5) A
certification by the applicant that:
a. All
information provided in or attached to the application is complete, accurate,
and up-to-date as of the date of the application;
b. There are no willful misrepresentations of
answers to questions therein, and no omissions with respect to any of the
answers and questions presented; and
c. The
applicant shall immediately notify the food protection section with regard to any changes, corrections, or updates to the
information provided in the application.
(c)
Upon receipt of an application for the facility, the commissioner shall approve
or deny the application in accordance with RSA 184:86, RSA 184:87, He-P
2703.03, and He-P 2703.04.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00; ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P 2703.02 Processing of Applications.
(a) An application shall be processed in
accordance with RSA 541-A:29.
(b) If the application does not contain all of
the items required by He-P 2703.01, the department
shall:
(1)
Not process the application; and
(2)
Notify the applicant in writing that all required items must be
submitted within 30 days in order for the application
to be processed.
(c) If all the items required by
He-P 2703.01 are received, the application shall be deemed to be complete.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00; ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2703.03 License
Issuance and Duration.
(a) If the application for an in-state milk
plant, distributor, or producer-distributor meets the requirements of He-P
2703.02 and an inspection of the facility conducted in accordance with He-P
2703.10 determines compliance with He-P 2700 and Mil 301, a license shall be
issued.
(b) If the application for an out-of-state grade
A milk plant or producer-distributor meets the requirements of He-P 2703.02 and
if a federal rating conducted on the facility results in a score of 90 or
higher, a license shall be issued.
(c) If the application submitted by an
out-of-state non-grade A milk plant or producer-distributor meets the
requirements of He-P 2703.02 and if the copy of the latest inspection submitted
with the application shows compliance with Mil 301, a license shall be issued.
(d) If the application submitted by a distributor
meets the requirements of He-P 2703.02, a license
shall be issued.
(e) Pursuant to RSA 184:85, all licenses shall
remain in effect until the first of January of the year following issuance or
until revoked.
(f) Licenses shall not be transferable with
respect to persons or locations.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00; ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2703.04 Denial
of License Applications.
(a) The department shall deny a license for an
in-state milk plant, distributor, or producer-distributor if the applicant does
not receive a minimum score of 95 on an inspection or has violations of
critical items as set forth in He-P 2703.10.
(b) The department shall deny a license for an
out-of-state milk plant or producer-distributor if:
(1)
The applicant is a grade A milk plant or producer-distributor and does
not have a federal rating with a score of 90 or higher; or
(2)
The copy of the latest inspection submitted by the applicant, who is a
non-grade A milk plant or producer-distributor, does not show compliance with
Mil 301.
(c) The department shall deny an application if
the application is not complete in accordance with
He-P 2703.01 and items requested by the department in accordance with He-P
2703.02 are not received within the time requested.
(d)
License applications shall be denied in accordance with RSA 184:86 and
RSA 184:87.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00; ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2703.05 Milk
Plant, Producer-Distributor, or Distributor Change of Ownership.
(a) If an in-state milk plant, distributor, or
producer-distributor changes ownership, a license shall not be issued until
after completion of an inspection in accordance with He-P 2703.09, and the new
owner complies with He-P 2703.01.
(b) If an out-of-state milk plant, distributor,
or producer-distributor changes ownership, a license shall not be issued until
an application is submitted as required in He-P
2703.01.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P 2703.06 Renewal of Licenses.
(a) To renew, an
applicant shall submit:
(1) All items listed in
He-P 2703.01(b) along with any supporting documentation;
(2) Any changes to information provided to the
department on the initial application; and
(3) Payment as specified in
He-P 2706.01(b).
(b) Licenses for
milk plants, producer-distributors, and distributors shall be renewed provided
the following conditions exist at the time of renewal:
(1) No milk or milk products from the plant,
sampled and analyzed by the department, exceed the quality standards in Mil 301
on 2 of the last 4 samples;
(2) A minimum score of 90 on the last federal
rating is obtained by a grade A out-of-state milk plant or producer-distributor
license holder;
(3) The copy of the latest inspection submitted
by an out-of-state non-grade A milk plants and producer-distributors shows
compliance with Mil 301;
(4) The distributor has submitted a complete
application as required in (a) above; and
(5) There is no violation of RSA 184:86.
(c) Each licensee
wishing to renew his or her license shall apply pursuant to (a) above at least
30 days prior to the expiration of the current license.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #10956, eff
10-22-15; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2703.07 Revocation
of Licenses.
(a) Revocation of a milk license shall occur
when:
(1) An
in-state milk plant, distributor, or producer-distributor has 4 consecutive violations
of the same item and has not entered into a compliance agreement with the department;
(2) A
minimum score of 90 on a U.S. Public Health rating conducted by a FDA certified milk sanitation rating officer is not
obtained by an out-of-state milk plant and producer-distributor license holder;
(3) An
in-state milk plant, distributor, or producer-distributor fails to meet the
requirements of a compliance agreement entered into in accordance with He-P 2704.01;
(4) An
in-state milk plant or producer-distributor fails to meet quality standards in
Mil 301 for 3 out of 5 samples of one or more products and does not enter into
a compliance agreement as specified in He-P 2704.01(c);
or
(5)
There is a violation as described in RSA 184:86.
(b) The department shall revoke a license in
accordance with the procedures set forth in RSA 541-A:30, II, and RSA 184:86
and 87.
(c) Rehearing and appeals of decisions of the
department, resulting from an adjudicative proceeding, shall be in accordance
with RSA 184:94.
(d) Any milk plant, producer-distributor, or
distributor which has had a license revoked shall be prohibited from applying
to renew their license until 6 months following the date of the revocation.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
He-P
2703.08 Effect
of Denial of Application or Revocation.
(a) Any applicant who has been denied a license
shall not operate as a milk plant, producer-distributor, or distributor.
(b) If a license has been revoked, the milk
plant, producer-distributor, or distributor shall cease operation immediately,
pursuant to RSA 184:84.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2703.09 Inspection
of Milk Plants, Distributors and Producer-Distributors.
(a) Inspections of all in-state milk plants,
distributors, and producer-distributors shall be conducted in accordance with
RSA 184:86 and Mil 301. Inspections of out-of-state milk plants and
producer-distributors shall be conducted by the state or local regulatory
agency with authority over the facility in accordance with the Pasteurized Milk
Ordinance pursuant to Mil 301.
(b) Inspections on all in-state milk plants,
distributors, and producer-distributors shall be conducted:
(1)
Prior to issuance of a license; and
(2)
Whenever the department has reason to believe a condition exists that
places the milk plant, distributor or
producer-distributor in non-compliance with Mil 301, RSA 184, or He-P 2700.
(c)
When critical items are found in violation a follow up inspection shall
be conducted.
(d) When only non-critical violations are found
during an inspection, the next inspection shall take place within 3 months.
(e) If any item is debited 3 consecutive times, a
warning letter shall be issued to the facility informing them that their
license shall be revoked in accordance with RSA 184:86 unless one of the
following is complied with:
(1) An
inspection conducted by the department showing the item or items outlined in
the warning letter have been corrected.
This inspection shall occur within 21 days from the date of this letter
but not before the lapse of 3 days; or
(2)
The facility enters into a compliance agreement with the department to
correct the item or items outlined in the warning letter.
(f) Non-grade A milk plants and
producer-distributors, located within the state, shall be inspected at least
twice a year.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
He-P
2703.10 Critical
Items. On the milk plant inspection
report contained in the Pasteurized Milk Ordinance incorporated by reference in
Mil 301.01, the following shall be considered critical items:
(a) Item 7a - d: water supply;
(b) Item 12a or c: cleaning and sanitizing of
containers/equipment;
(c) Item 15b: cross connections;
(d) Item 16a,2, 16b,2, or 16c,2: time and
temperature controls;
(e) Item 16b,3 or 16c,3: adulteration controls;
(f) Item 16c: regenerative heating; and
(g) Item 17(a, b, or d): cooling of milk.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
PART He-P 2704 COMPLIANCE AGREEMENTS
He-P
2704.01 Procedure
for Compliance Agreements.
(a) If one or more milk or milk products produced
by an in-state milk plant or producer-distributor fail to meet quality
standards adopted in Mil 301 for 3 of the last 5 samples of that product, the
milk plant or producer-distributor shall enter into a compliance agreement with
the department wherein they agree to suspend sale of the product until
compliance with the quality standards is achieved.
(b) Compliance agreements shall be completed at
the conclusion of an inspection or at a compliance meeting to be held at a later date if the permit or license holder is not
available at the time of the inspection and compliance is not already achieved.
(c) The following shall be provided in the
compliance agreement:
(1)
The date of the agreement;
(2)
The name of the establishment;
(3)
The permit or license number of the establishment;
(4)
The name of the person in charge of the establishment;
(5)
The permittee or license’s attestation to the agreement to make such
repairs, corrections, and changes that are necessary to bring the establishment
into compliance with Mil 301 and He-P 2700, or to suspend sale of milk or milk
products that have exceeded quality standards;
(6) A list of each all repairs, corrections,
or changes to be made including the date of intended completion;
(7)
The signature of the person in charge;
(8)
The title of the signee; and
(9)
The signature of the inspector or department representative making the
agreement.
(d) Failure on the part of the permit or license
holder to comply with the signed compliance agreement shall result in action
against the permit or license as specified in He-P 2702.06 and He-P 2703.07.
Source. #5695, eff 8-26-93,
EXPIRED: 8-26-99
New. #7315, eff 7-1-00; ss by #9189, INTERIM, eff 7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17; ss by #13175, eff 3-2-21
PART He-P 2705 ADMINISTRATIVE FINES
He-P
2705.01 Procedure
for Administrative Fines. Whenever
the department determines that a violation of RSA 184 or of the provisions of He-P 2700 has occurred, the permit or license holder
shall be provided with a written notice:
(a) Identifying each violation;
(b) Informing the permit or license holder of the
amount of the assessed fine under He-P 2705.02;
(c) Informing the permit or license holder of the
right to appeal the department’s decision to assess a fine by submitting a
written request for a hearing to the commissioner no later than 10 calendar
days from the date of receipt of the notice;
(d) Informing the permit or license holder of the
opportunity to waive the right to a hearing by paying the fine within 10 days
of the receipt of the department notice of assessed administrative fine; and
(e) Informing the permit or license holder that
if he or she does not request an appeal as specified in (c) above, the
department’s decision to assess a fine shall become final after the 10 day period specified in (c) above and the fine shall be
paid to the department no later than 10 days from that date.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-1717;
ss by #13175, eff 3-2-21
He-P 2705.02 Schedule of Administrative
Fines. The department shall impose
administrative fines as follows:
(a) For willful submission of fraudulent or
materially false information on or with an application, in violation of He-P
2702.01 or He-P 2703.01, the fine shall be $1,000;
(b) For failure to cooperate during an inspection
of a dairy farm, milk processing plant, or distributor, including but not
limited to failing to allow department representatives or inspectors to
inspect, at any reasonable hours, all premises and places where milk is
produced, handled, processed, or pasteurized, in violation of RSA 184:96, the
fine shall be $2,000;
(c) For operating a dairy farm, or milk
processing plant, or as a milk distributor in the state without first obtaining
a milk producer permit or milk sanitation license, the fine shall be $1,000. Each day that an individual or business
continues to operate without obtaining a permit or license shall be considered
a separate offense subject to an additional $500 fine;
(d) For failure to cease operation after a milk
producer permit has been suspended, or when a permit has been revoked, the fine
shall be $1,000. Each day that a permit holder fails to cease operation shall
be considered a separate offense subject to an additional $500 fine;
(e) For failure to cease operation after a milk
plant, producer-distributor, or distributor license has expired, when an
application has been denied, or when a license has been revoked, the fine shall
be $1,000. Each day that a license holder fails to cease operation shall be
considered a separate offense subject to an additional $500 fine;
(f) For failure to pay an administrative fine
within 30 days of its imposition, or the completion of any appeal of the
administrative fine, the fine shall be $500 per day until the fine is paid;
(g) For failure to submit a timely license
renewal application in accordance with He-P 2703.06(c) the fine shall be $75;
(h) For the same critical violation found at an
in-state milk plant, distributor, or producer-distributor on more than 2
consecutive inspections, the fine shall be $500;
(i) For failure to
enter into a corrective action plan (CAP) when required to do so by He-P
2703.09(h) the fine shall be $500;
(j) For a failure to comply with any CAP that has
been accepted by the department, the fine shall be $500;
(k) For picking up milk, weighing milk, and
sampling milk at a dairy farm in the state without first obtaining a bulk milk
hauler license from the department, the fine shall be $100. Each day that an individual continues to
operate without obtaining a license shall be considered a separate offense
subject to an additional $50 fine;
(l) For failure to cease operation after a bulk
milk hauler license has been suspended or revoked, the fine shall be
$1,000. Each day that a license holder
fails to cease operation shall be considered a separate offense subject to an
additional $500 fine; and
(m)
For violating a variance approved in accordance with He-P 2709, the fine shall
be $500.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #9589, eff 11-5-09;
ss by #10956, eff 10-22-15; ss by #12101, eff 2-3-17; amd
by #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19;
ss by #13175, eff 3-2-21
He-P
2705.03 Form
of Payment of Fees and Administrative Fines. Whenever an applicant or permit or license
holder makes a payment to the department in satisfaction of a fee or
administrative fine, the following shall apply:
(a) Payment shall be made in the form of cash,
check, money order, or credit card for the exact amount due;
(b) Credit card payments
for the exact amount due may be made online at http://www.dhhs.nh.gov/dphs/fp/index.htm;
(c) Cash, money order, or certified check shall
be required when an applicant or license holder has issued payment to the
department by check, and such check was returned for insufficient funds;
(d) Any instrument described in (a) or (b) above
shall be made payable to the “Treasurer–State of New Hampshire”; and
(e) Any payment made to the department by check
which is returned for insufficient funds, and which a license holder has not
made good by submitting cash, money order, or certified check within 2 business
days of notification by the department, including any penalty assessment
required by RSA 6:11-a, shall result in revocation of the license
or permit after notice and opportunity for a hearing.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #12101, eff 2-3-17;
ss by #13175, eff 3-2-21
PART He-P 2706 CLASSIFICATIONS AND LICENSURE FEES
He-P
2706.01 Milk Plant, Out-of-State Milk Plant, Distributor, and
Producer-Distributor Classification and Licensure Fees.
(a) Milk plant, out-of-state milk plant,
distributor, and producer-distributor shall be classified as follows:
(1) Milk plant, out-of-state milk plant,
distributor, and producer-distributor of over 25,000 pounds of milk, milk
products, or both per day shall be designated as Class 1;
(2)
Milk plant, out-of-state milk plant, distributor, and
producer-distributor of more than 10,000 pounds of milk, milk products, or both
per day, but not more than 25,000 pounds per day shall be designated as Class 2;
(3)
Milk plant, out-of-state milk plant, distributor, and producer-distributor
of more than 1,000 pounds of milk, milk products, or both per day, but not more
than 10,000 pounds per day shall be designated as Class 3; and
(4)
Milk plant, out-of-state milk plant, distributor, and
producer-distributor of not more than 1,000 pounds of milk and/or milk products
per day shall be designated as Class 4.
(b) Fees for milk plant, out-of-state milk plant,
distributor, and producer-distributor shall be graduated by class in accordance
with the following schedule:
(1)
Milk plant, out-of-state milk plants, distributor, and
producer-distributor contained in Class 1 shall pay a licensure fee of $350;
(2)
Milk plant, out-of-state milk plants, distributor, and
producer-distributor contained in Class 2 shall pay a licensure fee of $275;
(3)
Milk plant, out-of-state milk plants, distributor, and
producer-distributor contained in Class 3 shall pay a licensure fee of $175;
and
(4)
Milk plant, out-of-state milk plants, distributor, and
producer-distributor contained in Class 4 shall pay a licensure fee of $100.
(c) Fees for milk plant, out-of-state milk plant,
distributor, and producer-distributor licenses shall be annual fees in
accordance with RSA 184:85 and shall be non-refundable.
Source. #7315, eff 7-1-00;
ss by #9189, INTERIM, eff
7-1-08, EXPIRES: 12-28-08; ss by #9325, eff 11-21-08; ss by #9589, eff 11-5-09;
ss by #12101, eff 2-2-17; ss by #13175, eff 3-2-21
PART He-P 2707 APPLICATION, LICENSING, AND INSPECTION
OF BULK MILK HAULERS
He-P
2707.01 Application
Submission.
(a) All applicants for licensure under RSA
184:76-a shall submit to the department a completed, signed, and dated
application “Application for Bulk Milk Hauler License” (March 2019), affirming
and certifying the following:
(1) “I certify that all information provided in or attached to this
application is complete, accurate and up-to-date as of the date specified
below. I further certify that there are no willful misrepresentations of the
answers to questions herein, and that I have made no omissions with respect to
any of my answers to the questions presented. I understand that it is my
responsibility to immediately notify the Food Protection Section, Dairy Program
with regard to any changes, corrections or updates to
the information provided.”
(b) The applicant shall provide the following
along with the application:
(1) If
an applicant has a valid out of state milk haulers license, permit, or both:
a. A
copy of a valid out of state milk haulers permit or license; and
b. A
current copy of a bulk milk hauler evaluation inspection form filled out by a
SSO or DSSO;
(2) If
an applicant is obtaining licensure for the first time, acknowledgement that
they agree to take a written evaluation and be inspected by the department for
the purpose of licensure pursuant to He-P 2707.07; and
(3) A
check, money order, credit card payment, or online payment for the applicable
fees in accordance with RSA 184:77.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2707.02 Processing
of Applications.
(a) An application shall be processed in
accordance with RSA 541-A:29 and RSA 541-A:29-a.
(b) If the application does not contain all of
the items required by He-P 2707.01, the department
shall:
(1)
Deem the application incomplete; and
(2)
Notify the applicant in writing of which items are missing.
(c) The requested items shall be submitted to the
department within 30 days in order for the application
to be processed.
(d) If all the items required by
He-P 2707.01 are received, the application shall be deemed to be complete.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2707.03 License
Issuance and Duration.
(a) A license shall be issued if:
(1)
The application requirements set forth in He-P 2707.01 have been met and
the application has been deemed complete; and
(2) If
applicable, the evaluation and inspection of bulk milk haulers conducted in
accordance with He-P 2707.07, determines compliance with RSA 184, He-P 2700,
and Mil 301.
(b) Pursuant to RSA 184:77, all licenses shall
remain in effect for a period of 2 years and be renewed biennially during the
month of January.
(c) Licenses shall not be transferable with respect
to persons.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2707.04 Denial
of License Applications.
(a) The department shall deny an application if
the application is not complete in accordance with
He-P 2707.01 and items requested by the department in accordance with He-P
2707.02 are not received within the time requested.
(b) The department shall deny a license for a
bulk milk hauler if the evaluation and inspection conducted in accordance with He-P 2707.07 deems the applicant non-compliant under
RSA 184, He-P 2700, or Mil 301.
(c)
Any applicant who has been denied a license shall not operate as a bulk
milk hauler.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P 2707.05 Renewal of Licenses.
(a) To renew, an applicant shall submit all the
items in (b) below and any changes to information provided to the department on
the initial application.
(b) The applicant shall provide the following
along with the application:
(1) A
current copy of a bulk milk hauler evaluation inspection form if it was
conducted by a SSO or DSSO from another state agency; and
(2) A
check, money order, credit card payment, or online payment for the applicable
fees in accordance with RSA 184:77.
(c) Licenses for bulk milk haulers shall be
renewed provided they have had an inspection within the last 24 months. A copy
of this inspection shall be provided with the application if it has been
conducted by a SSO or DSSO from an out of state agency.
(d) Each licensee wishing to renew his or her
license shall comply with He-P 2707.05(a) and (b) at least 30 days prior to the
expiration of the current license.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2707.06 Revocation
of Licenses.
(a) The department shall revoke a license in
accordance with the procedures set forth in RSA 541-A:30, II, and RSA 184:77.
(b) If a license has been revoked, the bulk milk
hauler shall cease operation, pursuant to RSA 184:76-a, immediately.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2707.07 Evaluation
and Inspection of Bulk Milk Haulers.
(a) A written evaluation of a milk hauler scoring
at least 70% in accordance with Mil 300 shall be conducted prior to issuance of
a license if the bulk milk hauler does not provide proof of licensing by
another state.
(b) Inspection of a bulk milk hauler shall be
conducted:
(1)
Prior to issuance of a license if the bulk milk hauler does not provide
proof of a current inspection by another state;
(2)
Whenever the department has reason to believe a condition exists that
places the bulk milk hauler in non-compliance with RSA 184, Mil 300, or He-P
2700; and
(3) At
least once every 24 months by a SSO or DSSO.
(c) If
any item is debited 3 consecutive times, a warning letter shall be issued to
the bulk milk hauler informing them that their bulk milk hauler license shall
be revoked unless one of the following is complied with:
(1) An
inspection conducted by the department showing the item or items outlined in
the warning letter have been corrected. This inspection shall occur within 21
days from the date of this letter but not before the lapse of 3 days; or
(2)
The bulk milk hauler enters into a compliance agreement with the
department to correct the item or items outlined in the warning letter prior to
the bulk milk haulers license being revoked.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
PART He-P 2708 APPLICATION AND PERMITTING OF MILK
ROUTES
He-P
2708.01 Application
Submission. A company or individual
requesting a permit under RSA 184:60-a, shall submit a completed, signed, and
dated “Application for a Milk Route Permit” (March 2019), affirming
and certifying the following:
(a) “I certify that
all information provided in or attached to this application is complete,
accurate and up-to-date as of the date specified below. I further certify that
there are no willful misrepresentations of the answers to questions herein, and
that I have made no omissions with respect to any of my answers to the
questions presented. I have verified all
drivers are properly licensed in accordance with RSA 184. I understand that it
is my responsibility to immediately notify the Food Protection Section, Dairy
Program with regard to any changes, corrections or
updates to the information provided.”
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2708.02 Processing
of Applications.
(a) An application shall be processed in
accordance with RSA 541-A:29.
(b) If the application does not contain all of
the items required by He-P 2708.01, the department
shall:
(1)
Deem the application incomplete; and
(2)
Notify the applicant in writing of which items are missing.
(c) The requested items shall be submitted to the
department within 30 days in order for the application
to be processed.
(d) If all the items required by
He-P 2708.01 are received, the application shall be deemed to be complete.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P
2708.03 Permit
Issuance and Duration.
(a) If the application for a milk route permit
meets the requirements of He-P 2708.01, a permit shall
be issued.
(b) All permits shall expire on August 1 each
year.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
He-P 2708.04 Revocation of Permit.
(a)
The department shall revoke a permit in accordance with the procedures
set forth in RSA 541-A:30, II.
(b)
The department shall revoke a milk route permit for any individual or
company who picks up milk in this state from a producer who does not have a
valid milk producers permit or has had their milk producers permit suspended or
revoked.
(c)
If a milk route permit has been revoked, all operations under RSA
184:60-a shall stop.
Source. #12631, INTERIM, eff 9-28-18, EXPIRES: 3-27-19; ss by #12743, eff 3-20-19; ss by #13175, eff 3-2-21
PART He-P 2709 VARIANCES
He-P 2709.01 Variances.
(a)
Applicants or license holders seeking variances from specific rules
shall contact the department by telephone at (603) 271-4589 or by mail, to
obtain a VR Form “Milk Variance Request Form” (February 2021).
(b)
Applicants or license
holders shall complete and submit to the department VR Form “Milk Variance
Request Form” (February 2021) by mailing to:
Department of Health and Human Services
Division of Public Health Services
Food Protection Section
29 Hazen Dr.
Concord, NH 03301
(c)
By completing and submitting a VR Form “Milk Variance Request Form”
(February 2021), the applicant or licensee holder
acknowledges that:
(1) The requested variance pertains to the rule
mentioned in the variance request only, and shall not be deemed permission to waiver from any other
requirements outlined in the He-P 2700; and
(2) If approved, this variance shall be considered null and void at such time one or
more of the following events should occur:
a. Change of ownership;
b. Renovation; or
c. Failure to comply with said variance.
(d)
The commissioner shall
approve a request for variance if:
(1) The commissioner
concludes that authorizing deviation from strict compliance with the rule item
from which a variance is sought does not contradict the intent of the rule; and
(2) The alternative proposed by the applicant or
license holder ensures that the objective or intent of the rule item from which
a variance is sought will be accomplished.
(e)
If a variance is approved, the license holder’s subsequent compliance
with the alternatives approved in the variance
shall be considered equivalent to complying with the rule item from which a
variance was sought.
(f)
A variance shall be
approved until the expiration of the current license or as specified by the
department.
(g)
No request for a variance concerning the rules of other state agencies
which are referred to in this chapter shall be approved.
Source. #13175, eff 3-2-21
Appendix
Rule |
|
He-P 2701.01 |
RSA 184:60-a, RSA 184:76-a, RSA 184:79, RSA 184:80 & RSA 184:88 |
He-P 2702.01 |
RSA 184:88 & RSA 184:89 |
He-P 2702.02 |
RSA 541-A:29 & RSA 184:89 |
He-P 2702.03 |
RSA 184:88 & RSA 184:89 |
He-P 2702.04 |
RSA 184:90 & RSA 184:91 |
He-P 2702.05 |
RSA 184:89 |
He-P 2702.06 |
RSA 184:90-a |
He-P 2702.07 |
RSA 541-A:30, II, RSA 184:90, RSA 184:91 & RSA 184:94 |
He-P 2702.08 |
RSA 184:90 & RSA 184:90-a |
He-P 2702.09 |
RSA 184:90 & RSA 184:92 |
He-P 2702.10 |
RSA 184:89 & RSA 184:90 |
He-P 2703.01 |
RSA 184:84 & RSA 184:85, I |
He-P 2703.02 |
RSA 541-A:29 & RSA 184:85, I |
He-P 2703.03 |
RSA 184:85 |
He-P 2703.04 |
RSA 184:86 &
RSA 184:87 |
He-P 2703.05 |
RSA 184:84 |
He-P 2703.06 |
RSA 184:85, 86 |
He-P 2703.07 |
RSA 184:86, RSA
541-A:30, II, RSA 184:87 & RSA 184:94 |
He-P 2703.08 |
RSA 184:84 |
He-P 2703.09 |
RSA 184:86, &
RSA 184:92 |
He-P 2703.10 |
RSA 184:85, II
& RSA 184:86 |
He-P 2704.01 |
RSA 184:85, II
& RSA 184:89 |
He-P 2705.01 |
RSA 184:105 &
RSA 541-A:31, III |
He-P 2705.02 |
RSA 184:105 |
He-P 2705.02
intro., (k) and (l) |
RSA 184:76-a |
He-P 2705.03 |
RSA 6:11-a, RSA
184:85, III & IV & RSA 184:105 |
He-P 2706.01 |
RSA 184:85 |
He-P 2707.01 |
RSA 184:76-a |
He-P 2707.02 |
RSA 184:76-a |
He-P 2707.03 |
RSA 184:76-a |
He-P 2707.04 |
RSA 184:76-a |
He-P 2707.05 |
RSA 184:76-a |
He-P 2707.06 |
RSA 184:76-a |
He-P 2707.07 |
RSA 184:76-a |
He-P 2708.01 |
RSA 184:60-a |
He-P 2708.02 |
RSA 184:60-a |
He-P 2708.03 |
RSA 184:60-a |
He-P 2708.04 |
RSA 184:60-a |
He-P 2709.01 |
RSA 184:93 |