The Department has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. 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 adopt rules related to food grade standards in s. 93.09 (1), Stats., and 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, Lodging, and Recreation). 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.
Plain Language Analysis
Wisconsin ranks fourth in the nation in maple sap production. In 2015, Wisconsin maple syrup producers made 215,000 gallons of maple syrup, with an approximate value of $7,000,000. 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 (USDA), several states including Wisconsin, and the Canadian provinces of Ontario and Quebec. The existing Wisconsin grade standards were adopted in 1980.
The Department is proposing the separate permanent rule to modernize the Wisconsin maple syrup grade standards at the request of Wisconsin’s maple syrup producers. The USDA’s Agricultural Marketing Service (USDA-AMS) adopted new maple syrup grade standards in 2015. In conjunction with the International Maple Syrup Institute, USDA-AMS upgraded the Grade A color classes so that they are based on spectrophotometric analysis. Among other changes, the Grade B syrup designation was eliminated, and replaced with a Processing Grade designation. The new USDA-AMS standards have already been adopted by Vermont, New Hampshire, New York, and Maine.
This emergency rule will temporarily replace the existing Wisconsin maple syrup standards with those recently developed by the USDA-AMS for the 2017 maple syrup season. The alternatives of keeping the existing standards or having the Department develop new and unique standards for Wisconsin were discussed as part of the permanent rulemaking process and not supported by the Wisconsin maple syrup industry and were not included in this emergency rule. As suggested by Wisconsin maple syrup industry representatives during the permanent rulemaking process, this rule requires containers of maple syrup produced in a licensed food processing plant to be labeled with the grade designation that accurately describes the syrup inside the container. Containers of maple syrup produced in a facility not operating under a food processing plant license may be labeled the same way, with the term “ungraded,” or with no reference to grading. If Grade A color class terms or flavor descriptors from the new standards, e.g., amber and rich, respectively, are included on the maple syrup label, then the label must indicate the grade of syrup inside the container, or that the syrup is “ungraded.” Depending on where the syrup in a container of graded maple syrup was produced, the geographical designation “Wisconsin” or “U.S.” may precede certain grade designations. The rule also describes requirements for labeling maple syrup as “Bottled in Wisconsin” or “Packaged in Wisconsin.”
This emergency rule also addresses requirements for certain maple syrup facilities. The rule differentiates the stringent general requirements for food processing plants and specific requirements for those food processing plants in which the only activity is the concentration of sap, i.e., “sugar houses.” The rule contains specific requirements that address the unique characteristics of many sugar houses, without compromising public health or product wholesomeness. For example, the rule specifically allows a tank containing maple syrup before concentration to be uncovered, as commenters from the maple syrup industry stated that maple sap an uncovered tank cools more rapidly, leading to better quality sap, and an uncovered tank allows visual observation necessary for process control. Similarly, the rule has new, flexible, but adequate, requirements for the proximity of equipment-cleaning sinks, handwash sinks, and a toilet room in a maple sap concentration facility. The rule specifies that liquid maple products and maple-derived water (terms defined in the rule) may be transferred from a concentration facility to a further-processing facility operated under a food processing plant license, provided basic sanitation requirements are met. The rule also defines when and how water removed from reverse osmosis treatment of maple sap may be used for other purposes in a maple sap concentration facility operating under a food processing plant license. This latter topic was the focus of several comments received from maple syrup producers during the permanent rule revision.
Comments from maple syrup producers during the permanent rulemaking process also led to the inclusion of one new maple syrup-specific provision in the rule. The use of syrup de-foaming agents that contain major food allergens such as milk or soy is prohibited in this emergency rule. In the past, cream was commonly used as a de-foamer, but the possible presence of trace amounts of milk protein in maple syrup was seldom if ever indicated on the label. Industry attendees indicated that non-allergenic de-foaming agents are readily available and advocated for the prohibition against use of allergen-containing agents.
This emergency rule also addresses the emerging concerns of nomenclature and processing requirements for a range of new products related to maple syrup. During the permanent rulemaking process, several comments were received on acceptable terminology for these products, including what the rule terms “maple sap water,” which is non- or partially-concentrated maple sap. The definition for this product in this emergency rule is based on the comments received. We termed another new product “maple-derived water” and defined it as the permeate resulting from reverse osmosis treatment of maple sap that is bottled for consumption. This emergency rule contains a requirement that the Division of Food and Recreational Safety approve processes for manufacturing maple-derived water.
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 are considered “facilities” 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. This emergency rule essentially 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. 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," and processing maple syrup in a home kitchen for sale is not allowed. Maple syrup producers who are eligible for the licensing exemptions still must meet all requirements of the Michigan Food Law, including sanitation, building construction and design, and employee hygiene.
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 inspection 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
This emergency rule adopts the provisions of the proposed permanent rule for revising ATCP 87. During the permanent rulemaking process, rule revisions 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. Department staff with experience in food processing plant inspection, or supervision thereof, provided formative input to the drafting of the permanent rule.
Analysis and Supporting Documents used to Determine Effect on Small Business
During the permanent rulemaking process, 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. Comments from attendees at hearings held for the permanent rule proposal were also carefully considered.
Effect on Small Business
Department inspections of maple syrup concentration facilities, i.e., “sugar houses,” have proven challenging over the years. The major end product at most of these facilities (maple syrup) is not potentially hazardous, and the perishable raw material (maple sap) is exposed to the heat of boiling, which destroys microbes. Thus there is little concern about microbial food safety hazards in relation to the process. However, 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, or characteristics of equipment, e.g. chemical contaminants from non-food-grade equipment used in harvesting, transporting, or concentrating maple sap. This situation makes rigorous compliance with, and enforcement of, all requirements of ATCP 70 (Food Processing Plants) difficult for the maple syrup industry and the Department, respectively. Most facilities already meet the requirements of this rule, so this rule will have little effect on most of the industry. Small businesses holding a food processing plant license that do not currently meet the proposed facility requirements for maple syrup operations may face some facility-upgrade costs, particularly the installation of a three-compartment sink necessary for effective cleaning, rinsing, and sanitizing equipment, and any upgrades in areas of their facility in which finished syrup is stored and packaged. Businesses processing maple-derived water or maple sap water may face facility-upgrade costs. This emergency rule will not have a significant adverse economic effect on “small business.”
Peter Haase, Director
Bureau of Food and Recreational Businesses
Division of Food and Recreational Safety
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4711
FINDING OF EMERGENCY
(1) The department is currently in the final stages of promulgating a permanent rule that will harmonize Wisconsin’s outdated maple syrup grade standards with new standards recently adopted by the federal government and several other leading maple syrup states. The proposed permanent rule will clarify food processing plant requirements for maple syrup production facilities and allow Wisconsin maple syrup producers to develop new maple syrup products. The permanent rule revision was developed in consultation with Wisconsin’s maple syrup industry and is strongly supported by Wisconsin maple syrup producers. The permanent rule will not be finalized in time for the 2017 maple syrup season.
(2) Failing to implement the standards, even for one season, will negatively impact Wisconsin’s $7,000,000 maple syrup industry. Failure to implement the new standards for the 2017 season will prevent Wisconsin producers from competing under the same rules recently adopted by their competition in other states and internationally.
(3) Failing to adopt this emergency rule will also mean that Wisconsin’s producers will operate under standards that classify what has recently become a popular maple syrup product as “manufacturing grade,” diminishing its value, and reducing the potential income of Wisconsin’s maple syrup producers. Consumer tastes for new and different flavors are reflected in the growing popularity of darker-colored, stronger flavored maple syrup which is currently classified as manufacturing grade under Wisconsin’s current standards. By creating a Grade A option for this syrup, consistent with standards adopted in other states, the new standards will remove a grading stigma against this increasingly popular product.
(4) In today’s marketplace, many consumers care about a food’s origin and prefer locally produced items. They also seek accurate descriptions of the products they purchase. Immediate implementation of the new Wisconsin maple syrup grade standards allows maple syrup producers to present the Wisconsin “brand” and descriptive color and flavor information to consumers in the same format as available to maple syrup producers in competing states.
(5) Wisconsin’s maple syrup producers’ financial success is highly concentrated in a short tapping, processing, and packaging season – often only three or four weeks long – which will begin shortly. This emergency rule is essential for protecting the financial welfare of Wisconsin’s maple syrup producers.
Section 1. ATCP 70.04 (18) is created to read:
ATCP 70.04 (18) Maple sap concentration facilities. A facility licensed as a food processing plant and used solely for concentration of maple sap shall meet the requirements of s. ATCP 87.14.
Section 2. ATCP 70.05 (1) is renumbered ATCP 70.05 (1) (a).
Section 3. ATCP 70.05. (1) (title) is repealed and recreated to read:
ATCP 70.05. (1) General.
Section 4. ATCP 70.05 (1) (b) is created to read:
ATCP 70.05 (1) (b) Par. (a) does not apply to a maple sap concentration facility licensed as a food processing plant that is required to meet the provisions of s. ATCP 87.28.
Section 5. ATCP 70.06 (1) is renumbered ATCP 70.06 (1) (a).