DATCP Docket No. 15-R-06
Proposed Hearing Draft
Rules Clearinghouse No. ____
May 23, 2016
PROPOSED ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby proposes the following rule to repeal and recreate ATCP ch. 87, subch. II; to amend ATCP 70.05 (1), ATCP 70.06 (1) and (7) (d); and to create ATCP 70.04 (18), ATCP 70.07 (1) (f), ATCP 70.10 (7); relating to maple syrup grading and processing, and affecting small business. Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (“Department”) regulates maple syrup grading and processing through ch. ATCP 70 (Food Processing Plants) and ch. ATCP 87 (Maple Syrup Grading and Processing). This rule revision will incorporate recent changes to federal maple syrup grade standards. In addition, this rule revision will also exempt traditional maple sap concentration facilities from the more-rigorous food processing plant requirements that are necessary in more complex maple syrup and maple sap product processing and packaging facilities. Statutes Interpreted
Statutory Authority
Explanation of Statutory Authority
The Department has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The Department has specific authority to adopt rules related to food grade standards in s. 93.09 (1), Stats. The Department also has general authority under s. 97.09 (4), Stats., to adopt rules specifying standards to protect the public from the sale of adulterated or misbranded foods. The Department has specific authority to promulgate rules related to food processors in s. 97.29 (5), Stats., Related Statutes and Rules
Wisconsin’s maple syrup producers are governed by ch. 97, Stats. (Food Regulation). Maple syrup processing is regulated under s. 97.29, Stats., (Food processing plants). Subch. II (Maple Syrup) of Chapter 87 (Honey and Maple Syrup), Wis. Adm. Code, interprets ch. 97, Stats., as it relates to maple syrup grading.
Plain Language Analysis
Wisconsin ranks fourth in the nation in maple sap production. In 2014, Wisconsin maple syrup producers made 200,000 gallons with an approximate value of $10,000,000. Maple syrup grades provide a common language for describing maple syrup sold both at wholesale and retail. Maple syrup grades are currently established by the United States Department of Agriculture, several states including Wisconsin, and the Canadian province of Quebec. The Wisconsin grade standards were adopted in 1980.
At the behest of maple syrup producers, the Department is proposing to modernize the Wisconsin maple syrup grade standards and the requirements enforced at maple syrup facilities. The USDA’s Agricultural Marketing Service (USDA-AMS) adopted new maple syrup grade standards in 2015. In conjunction with the International Maple Syrup Institute (IMSI) USDA-AMS upgraded the Grade A color classes so that they are based on spectrophotometric analysis. Among other additional changes, the Grade B syrup designation is eliminated, and replaced with a Processing Grade designation. The new USDA-AMS standards have already been adopted by Vermont, New Hampshire and Maine.
This proposed rule will replace the existing maple syrup standards with those recently developed by the USDA-AMS. The Department is also looking at whether maple syrup producers are generally more interested in the alternatives of keeping the existing standards or having the Department develop new and unique standards for Wisconsin.
The second purpose of this rule revision is to address requirements for maple syrup facilities. The proposed rule differentiates between the stringent requirements for food processing facilities, in general, from requirements for those facilities where the only activity is the thermal concentration of sap, i.e., “sugar shacks.” The proposed rule creates necessary rules for food safety in these latter facilities, but ones that address their unique facility characteristics. It also clarifies existing rules to indicate the simple transfer of reduced maple sap from the thermal concentration facilities to the further-processing facilities can be done under one food processing plant license.
The proposed rule also establishes requirements for processing a range of new products related to maple syrup. Among these are “maple water,” that may be pasteurized non- or partially-concentrated sap, or a product of reverse osmosis treatment of sap, that is bottled for consumption. The Department will work with maple syrup producers during this rule-making process, to determine the extent to which rule revisions are needed to address concerns of food safety as well as provide a regulatory framework for the production and standardization of these products.
Summary of, and Comparison with Existing or Proposed Federal Statutes and Regulations
Businesses that only harvest maple sap are not subject to federal food safety rules, but businesses that convert the sap to maple syrup or any other food would be considered “facilities” and subject to the Food Safety Modernization Act and the rules that implement it. There is a federal standard of identity for maple syrup under 21 CFR 168.140, and maple syrup producers involved in interstate commerce must follow Good Manufacturing practices as outlined in 21 CFR 117. The proposed rule adopts the voluntary federal grade standards for maple syrup, with only minor modifications. Comparison with Rules in Adjacent States
Retail sales of maple syrup in Illinois are under the jurisdiction of state or local health departments and regulations modeled on the FDA Food Code. Therefore, maple syrup sold at retail must originate in a facility subject to FDA or state inspection. Maple syrup is not one of the foods exempted from food processing rules via the Illinois Cottage Food Bill. Illinois does not license food processing plants. Production of maple syrup for wholesale is done in facilities subject to state rules that largely adopt FDA regulations.
