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.
Michigan licenses maple syrup producers who sell their product wholesale but does not require a retail food establishment license for sales of maple syrup made by a licensed producer. Maple syrup producers in Michigan can qualify for a cottage foods exemption from the food licensing requirement. Maple syrup producers who meet licensing exemptions (less than $15,000 annually in sales) must follow the same labeling requirements for their maple syrup as those outlined for other cottage food products. Michigan requires the label to read "Processed in a facility not inspected by the Michigan Department of Agriculture & Rural Development," because maple syrup cannot be processed in a home kitchen. Maple syrup producers who meet the licensing exemptions still must meet all requirements of the Michigan Food Law, including sanitation, building construct and design, employee hygiene, etc.
Iowa considers maple syrup an agricultural commodity, and thus not subject to state inspection. Notwithstanding, Iowa food processing plant regulations largely cite FDA rules. Iowa also exempts cottage food operations from licensing requirements.
In Minnesota, a license is required to legally sell maple syrup to the public unless all sap is obtained from the maple syrup producer’s land and no other “off farm” inputs are used in making the product (e.g., sap from neighbors’ trees). However, all maple syrup operations selling to the public are subject to inspections by the Minnesota Department of Agriculture. Labeling requirements for maple syrup are the same as for other foods under Minnesota jurisdiction.
Summary of Factual Data and Analytical Methodologies
Proposed rule changes were developed in response to requests from the Wisconsin maple syrup industry and after a review of existing Wisconsin rules and internal policies for inspection of maple syrup processing operations and rules in other leading maple syrup states (Vermont, New York, New Hampshire, Maine, and Ohio.
Analysis and Supporting Documents used to Determine Effect on Small Business
Recent inspection results and photographs taken during inspections at a wide range of maple syrup operations were evaluated in considering the effect of the proposed rule on small business. Department staff with experience in food processing plant inspection, or supervision thereof, provided formative input to the drafting of the proposed rule.
Effect on Small Business
Department inspections of maple syrup thermal concentration facilities, i.e., “sugar shacks,” have proven challenging over the years. The end product at these facilities (maple syrup) is not potentially hazardous, and the raw material is exposed to either cool ambient conditions (before boiling) or the heat of boiling, both of which preclude microbial growth. Thus there is little concern about food safety in relation to the process. In contrast, many facilities are in remote locations and there is a small, but real, risk of product contamination related to characteristics of the facility, e.g., pests, pieces of wood. This situation makes the rigorous enforcement of all requirements of ATCP 70 (Food Processing Plants) difficult for the maple syrup industry and the Department. Most facilities already meet the requirements of the proposed rule, so the proposed rule will have little effect on a sizeable proportion of the industry. Small businesses that do not currently meet the proposed facility requirements for maple syrup operations may face some facility-upgrade costs, particularly in areas of their facility in which finished syrup is stored and packaged. Similarly, operators may face facility-upgrade costs if they add reverse osmosis units to a facility that is currently only performing thermal concentration of maple sap. Businesses processing maple-derived water or un-concentrated or partially concentrated maple sap may face facility-upgrade costs.
DATCP Contact
Peter Haase, Director
Bureau of Food Safety and Inspection
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4711
Where and When Comments May Be Submitted
Questions and comments related to this this rule may be directed to:
Peter Haase, Director
Bureau of Food Safety and Inspection
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4711
Comments will be accepted up to two weeks after the last public hearing is held on this rule. Hearing dates will be scheduled after this hearing draft rule is approved by the Board of Agriculture, Trade and Consumer Protection.
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Section 1. ATCP 70.04 (18) is created to read:
ATCP 70.04 (18) Maple sap thermal concentration facilities. Facilities used solely for thermal concentration of maple sap shall meet the requirements of s. ATCP 87.14. Section 2. 70.05 (1) is amended to read:
ATCP 70.05. (1) CleanlinessGeneral. (a) Persons engaged in food processing shall maintain a high degree of personal cleanliness, and shall observe good hygienic practices during all working periods. Persons engaged in food processing shall wash their hands before beginning work and upon returning to work after using toilet facilities, eating, smoking, or engaging in other activities which may contaminate the hands. Persons engaged in food processing shall keep their fingernails clean and neatly trimmed, and shall not wear fingernail polish unless they wear sanitary gloves at all times when handling food.
(b) Par. (a) does not apply to maple sap facilities that are required to meet the provisions of s. ATCP 87.28. Section 3. . ATCP 70.06 (1) is amended to read:
ATCP 70.06 (1) Construction and maintenance; general. (a) Equipment and utensils shall be of sanitary design and construction. Equipment and utensils shall be readily accessible for cleaning and inspection and shall be constructed so that they can be easily cleaned. Equipment and utensils shall be clean and in good repair.
(b) Par. (a) does not apply to maple sap facilities that are required to meet the provisions of s. ATCP 87.26. Section 4. ATCP 70.06 (7) (d) is amended to read:
ATCP 70.06 (7) (d) Paragraph (a) does not apply to the following equipment, provided that the food processing plant operator cleans and sanitizes the equipment according to manufacturer specifications:
