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 ATCP 60 and 80 and to create ATCP 65 and ATCP 65 Appendix relating to dairy farms and plants, and affecting small business.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This rule repeals ATCP 60, “Dairy farms,” and ATCP 80, “Dairy plants,” and consolidates and reorganizes those rules into a newly created ATCP 65, “Milk and milk products.” Certain provisions have been revised to modernize dairy farm and dairy plant inspection rules. The rule thereby accommodates advances in dairying and ensures continued industry and regulatory compliance with the Food and Drug Administration’s (FDA’s) Pasteurized Milk Ordinance (PMO) and federal guidelines for Grade “A” and Grade “B” milk and dairy products.
Statutes Interpreted
Statutes Interpreted: ss. 97.20, Stats., “Dairy plants;” 97.22, Stats., “Milk producers;” 97.23, “Drug residues in milk;” and 97.24, Stats., “Milk products.” Statutory Authority
Statutory Authority: ss. 93.07 (1), 97.09 (4), 97.20 (4), 97.22 (8), and 97.24 (3), Stats.
Explanation of Statutory Authority
DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. DATCP 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. DATCP has specific authority, under s. 97.20 (4), Stats., to establish rules to regulate dairy plants and under s. 97.22 (8) to promulgate rules to regulate the operation of dairy farms by milk producers. The department also has authority under 97.24 (3) to adopt rules ensuring compliance with the PMO. Related Statutes and Rules
Wisconsin’s dairy farms, dairy plants, and dairy products are governed by Ch. 97, Stats. Section 97.20, Stats, “Dairy plants” and s. 97.22, Stats., “Milk producers,” contain requirements related to milk producer and dairy plant licensing, milk procurement and reinspection fees, and Grade “A” permits. Section 97.23, “Drug residues in milk,” allows a dairy plant to recover, from a milk producer, the monetary loss incurred when the plant rejects a milk shipment because it is adulterated with drug residues in milk from the producer’s farm. Finally, s. 97.24, Stats., “Milk and milk products,” includes Grade “A” requirements for milk and milk products and authorizes DATCP to conduct surveys to verify conformance with the PMO’s Grade “A” standards.
Plain Language Analysis
Wisconsin operates the nation’s largest state dairy inspection program. As of October 1, 2014, Wisconsin had 10,157 licensed milk producers and ranked second nationally in milk production. Milk is shipped from each dairy farm to one of more than 400 licensed dairy plants in the state or to a licensed dairy plant in another state.
About 98% of the milk produced in Wisconsin is Grade “A.” Grade “A” unpasteurized milk, along with pasteurized milk and certain other dairy products made from Grade “A” milk, can only be shipped across state and international boundaries if the production, transportation, processing, and regulatory oversight are in accordance with the PMO. Wisconsin does not adopt the PMO directly, but has its own regulations for the dairy industry. These regulations must be at least as stringent, and consistent with, the PMO. The FDA revises the PMO every two years and the version of the PMO to which Wisconsin regulations are compared for compliance must be within two prior editions. This rule revision, which reflects changes found in the 2013 revision of the PMO, is essential for maintaining compliance with the PMO and for allowing Wisconsin farmers and dairy plant owners to ship their Grade “A” milk and milk products in interstate commerce.
Wisconsin’s regulations also establish standards to ensure the quality of Grade “B” milk, which is milk used only to process non-Grade “A” milk products, such as butter, cheese, and ice cream. Wisconsin had 1,280 Grade “B” licensed milk producers, or 13% of its total, on October 1, 2014. Recommended standards for Grade “B” dairy farms are published by the United States Department of Agriculture (USDA). Wisconsin’s regulations must be at least as stringent as the USDA standards to ensure access of Wisconsin Grade “B” milk products to international markets.
Wisconsin dairy farm and dairy plant regulations are currently found in chs. ATCP 60, “Dairy Farms” and ATCP 80, “Dairy Plants.” The proposed rule repeals chs. ATCP 60 and 80 and consolidates and reorganizes these chapters into a new ch. ATCP 65, “Milk and Milk Products.”. Consolidation of these two rule chapters will eliminate numerous, and sometimes confusing, cross-references between the two chapters. In recent years, there has been increased interest in the operation of small dairy plants on the same site as the dairy farm supplying the milk. The operators of these “farmstead” or “artisanal” dairy plants can now find most of the rules affecting their business in one chapter, rather than two. The rule revises certain existing provisions and creates new provisions, as necessary, to ensure: 1) Wisconsin’s Grade “A” and Grade “B” dairy sectors comply with the PMO and USDA standards, respectively, when they meet Wisconsin regulatory requirements, and 2) state regulations do not unnecessarily hinder technological advancement by Wisconsin’s internationally recognized dairy industry. Revisions to modernize dairy farm and dairy plant regulations.
The following describes specific revisions made, through the proposed rule, to modernize Wisconsin’s dairy farm and dairy plant regulations:
Revisions in General Terminology
Wording was changed throughout to provide greater clarity and modernize terms. For example, references to “milk haulers” were changed to “bulk milk weigher and samplers” to reflect the actual name of the license held by people who collect, sample, and transport milk. References to “inspectors” were changed to “division representatives” to reflect the broader range of staff, e.g. sanitarians, food scientists, regulatory specialists, who may conduct inspections. References to “division” or “department” staff were also changed throughout to more clearly align the rules with the roles and duties performed by each unit. For example, division representatives conduct inspections, while the department issues, suspends, and revokes licenses. Subchapter, section, and subsection chapter titles were also revised throughout to more clearly reflect the content of the rule.
ATCP 65.01, Definitions.
ATCP 65.01, as renumbered, includes the following revisions:
Added definitions for “abnormal milk,” “aseptic processing and packaging system,” “bulk tank unit,” “grade A producer permit,” and “sale.”
Repealed and replaced definitions for “C-I-P equipment,” “C-I-P milking equipment,” and “C-I-P milk pipelines” with a definition of “C-I-P” and numbered as 65.01 (8).
Updated the definition for “dairy product” to be consistent with a de facto change in the definition of a dairy product created under 2011 Wisconsin Act 195, which revised s. 97.20 (2) (e) 5., Wis. Stats., to create an exemption from mandated dairy plant licensing.
Replaced the term “food safety division” with “division.”
Expanded the definition for “grade B milk” to clarify that grade B milk is not processed into fluid milk for consumption; it is only used in the production of non-grade “A” dairy products.
Broadened the definition for “equipment” to cover equipment used on dairy farms and in dairy plants.
Repealed the definition from ATCP 60.01 (6) for “dairy plant” and replaced it with the definition from ATCP 80.01 (5) for “dairy plant.”
Revised the definition of “milk” to be consistent with the PMO definition by including the phrase “practically free of colostrum, obtained by the complete milking of one or more healthy milking animals.”
Expanded the definition “procure milk” to clarify that procured milk must be acquired directly from a licensed milk producer.
Updated the definition of “safe temperature” to state that safe refrigerated temperatures for potentially hazardous foods are 41°F. (5° C.) or below and safe heated temperatures for potentially hazardous foods are 135° F. (57°C.) or higher. This definition is now consistent with the Wisconsin Food Code (appendix to ch. ATCP 75, Retail Food Establishments) and ch. ATCP 70, Food Processing Plants.
Clarified that “sanitizers” shall be in compliance with 21 CFR part 178.1010 or otherwise approved by the division.
Repealed the definitions for “single-service utensil” and “single-service package” and replaced them with a definition for “single-service articles.” ATCP 65.02, Milk producer license and permits; and fees.
ATCP 65.02 was retitled from “Milk producer license; fees” to “Milk producer license and permits; fees.” This section was revised to consolidate all information about milk producer Grade “A” and Grade “B” licenses, Grade “A” permits, and fees from ATCP 60.02, 60.03, 60.04, and 60.05.
ATCP 65.02 (1) now requires a license for each milk producer, for each species of milk animal milked by a single milk producer, and each dairy farm operated by a milk producer at which milk is produced and offered for sale. Previously, not all of these parameters were mentioned.
ATCP 65.02 (2) was revised to clarify that a representative of the dairy plant may submit an application on behalf of a milk producer and that the dairy plant representative shall certify that both the dairy farm and milking operations comply with applicable requirements under the law.
ATCP 65.02 (4) (b) adds the due date of April 30 for paying the annual license fee.
ATCP 65.02 (8), “Milk produced for custom processing”, was created by consolidating existing requirements for custom processing a producer’s milk. Requirements for custom processing were not otherwise changed.
ATCP 65.02 (11) “Grade A permit”, allows no more than one milk producer to have a Grade “A” permit at a single dairy farm unless all of the milk shipped from that dairy farm is assigned to one bulk tank unit and each milk producer is licensed.
