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DATCP Docket No.   15-R-06
Rules Clearinghouse No. 16-044
The Wisconsin department of agriculture, trade and consumer protection hereby adopts the following rule to renumber ATCP 70.05 (1) and ATCP 70.06 (1); to amend ATCP 70.06 (7) (d) 5.; to repeal and recreate ATCP 70.05 (1) (title) and ATCP ch. 87, subch. II; and to create ATCP 70.04 (18), ATCP 70.05 (1) (b), ATCP 70.06 (1) (b), ATCP 70.06 (7) (d) 6., 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 (Honey and Maple Syrup). This rule revision incorporates recent changes to federal maple syrup grade standards. In addition, this rule revision exempts maple sap concentration facilities licensed as food processing plants from some food processing plant requirements that are still applicable to facilities at which post-concentration processing and packaging of maple syrup and maple sap products are done.
Statutes Interpreted
Statute Interpreted: ss. 93.09 (1) and 97.29, Stats.
Statutory Authority
Statutory Authority:   ss. 93.07 (1), 93.09 (1), 97.09 (4), and 97.29 (5), Stats.
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, 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 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 (USDA), several states including Wisconsin, and the Canadian provinces of Ontario and Quebec. The existing 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. 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 revised rule will replace the existing Wisconsin maple syrup standards with those recently developed by the USDA-AMS. The alternatives of keeping the existing standards or having the Department develop new and unique standards for Wisconsin were not supported by the Wisconsin maple syrup industry. As suggested by Wisconsin maple syrup industry representatives, the revised 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 revised rule also describes requirements for labeling maple syrup as “Bottled in Wisconsin” or “Packaged in Wisconsin.
This rule was also revised to address requirements for certain maple syrup facilities. The revised 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 revised rule contains specific requirements that address the unique characteristics of many sugar houses, without compromising public health or product wholesomeness. For example, the new rule specifically allows a tank containing maple syrup before concentration to be uncovered, as commenters from the maple syrup industry stated that maple sap in an uncovered tank cools more rapidly, leading to better quality sap, and an uncovered tank allows visual observation necessary for process control. Similarly, the revised 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 revised rule specifies that liquid maple products and maple-derived water (terms defined in the revised rule) may be transferred from a licensed concentration facility to a further-processing facility operated under a food processing plant license, provided basic sanitation requirements are met. The revised 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.
Comments from maple syrup producers also led to the inclusion of one new maple syrup-specific provision in the revised rule. The use of syrup de-foaming agents that contain major food allergens such as milk or soy is now prohibited. 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.
The revised rule also addresses the emerging concerns of nomenclature and processing requirements for a range of new products related to maple syrup. Several comments were received on acceptable terminology for these products, including what the revised rule terms “maple sap water, which is non- or partially-concentrated maple sap. The definition for this product in the revised 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. The revised rule contains a requirement that processes for manufacturing maple-derived water be approved by the Division.
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. The revised 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.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.