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.

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.

(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.

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.

(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:

(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;

(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.

(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.

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.

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:

(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.

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	Specific State or Federal Statutes or Regulations which the Rule Implements
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