DATCP Docket No. 13-R-06 and 13-R-13
Rules Clearinghouse No. 14-073
ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby adopts the following rule to repeal ATCP 60 and 80, to amend ATCP 77.01 (4m), 77.02 (1) (zd), 77.23 (1) (a) and (b) 2., 81.91 (1), 82.04 (1) (b) and (9)(b), 82.08 (3)(b), 82.10 (1)(a), and (6)(a), 82.12 (2m)(intro.) and (a), 82.12 (4) (c), 100.98 (2) (a) and (b), 100.982 (3) and (4) (f), and to create ATCP 65 and ATCP 65 Appendix relating to dairy farms and plants, and affecting small business.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This rule repeals chs. 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) Pasteurized Milk Ordinance (PMO) and federal guidelines for Grade “A” and Grade “B” milk and dairy products. The rule also indicates what provisions of new federal regulations implementing the FDA Food Safety Modernization Act (FSMA) must be followed by dairy plant operators.
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
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 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, 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), Stats., 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, Stats., “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 the Department to conduct surveys to verify conformance with the PMO’s Grade “A” standards. Administrative rules spell out the requirements that must be met to ensure compliance with statutes. Dairy farm requirements are currently found in ch. ATCP 60 (Dairy Farms) and dairy plant requirements are currently found in ch. ATCP 80 (Dairy Plants.) These two chapters are consolidated in the proposed rule. Other chapters of administrative rules, governing milk and milk products, include ch. ATCP 77 (Laboratory Certification), ch. ATCP 81 (Cheese Grading, Packaging and Labeling), ch. ATCP 82 (Bulk Milk Collection, Sampling, and Transportation), ch. ATCP 83 (Dairy Product Advertising and Labeling), and ch. ATCP 85 (Butter Grading and Labeling.)
Plain Language Analysis
Wisconsin operates the nation’s largest state dairy inspection program. As of November 27, 2015, Wisconsin had 9,976 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 as, 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 1,488 Grade “B” licensed milk producers, or 13% of its total, on November 27, 2015. 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.
The majority of Grade “A” and Grade “B” dairy plants in Wisconsin will be subject to new federal regulations implementing FSMA and known as the Preventive Controls−Human Food rule. It is possible that future FDA policy will consider compliance with the PMO to be equivalent to compliance with the Preventive Controls−Human Food rule. Grade “B” dairy plants will be expected by the FDA to directly comply with the Preventive Controls−Human Foods rules. Wisconsin regulators operate within a nationally integrated system of food safety regulation. A key part of this integration is functional equivalence between state and federal regulations. In order to maintain state-federal integration and reduce confusion for industry over which rules must be followed, the proposed rule specifies the federal rules that must be followed by Wisconsin-licensed dairy plants.
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 applicable PMO, FSMA, and USDA requirements 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 in the proposed rule to modernize and consolidate 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, and regulatory specialists, who may conduct inspections or investigations. 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.
