DATCP Docket No. 21-R-13 Preliminary Rule Draft
Rules Clearinghouse No. CR 24-086 October 8, 2024 THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION’S
PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection hereby adopts the following rule to repeal ss. ATCP 82.04 (9), (9) (a), (9) (b), (10), and (11), 82.08 (3) (c), and 82.10 (2) (c); to renumber ss. ATCP 82.10 (8) (b), 82.12 (2) (a), (2) (b), (2) (c), and (2) (d), 82.16 (1), (2), (3), and (4); to renumber and amend ss. ATCP 82.10 (8) (c), 82.16 (title); to amend ss. ATCP 82.01 (1), (1s), (3), (4), (5), (7), (7m) (b), (8), (9), and (10), 82.02 (5) (b) and (6) (a), 82.04 (1), (2), (6) (a), and (6) (b), 82.06 (1), 82.08 (1) (d), (2) (a), (4) (a), (4) (b), (4) (c), and (6) (b), 82.10 (2) (b), (2) (h), (4) (a), (6) (a), (6) (b), (6) (c), (8) (title), (8) (a), (9) (a), (9) (b), (9) (b) 1., (10), (10) (c), (10) (d), (10) (e), (11) (a), (11) (am) (1), and (11) (am) (4), 82.12 (1) (b) and (1) (c), and (5) (a), 82.14 (title), (1), and (2); and to create ss. ATCP 82.01 (4) (a), (4) (b), (4) (c), (4) (d), (9e), (9m), and (9s), 82.08 (1) (e) and (4) (a) 5., 82.10 (2) (b) 1., (2) (b) 2., (2) (b) 3., (2) (b) 4., (8) (b), (8) (b) 1., (8) (b) 2., (8) (b) 2. a., (8) (b) 2. b., (8) (b) 2. c., (8) (b) 2. d., (8) (c), and (9) (c), 82.12 (1) (bm), (2) (a), (2) (b), (2) (b) 1., (2) (c), (2) (c) 1., (2) (c) 2., (2) (c) 2. a., (2) (c) 2. b., (2) (c) 2. c., and (2) (c) 2. d., 82.16 (title), (1), (1) (a), and (1) (b); relating to Bulk Milk Collection, Sampling, and Transportation, and affecting small businesses.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Statute Interpreted: s. 97.21, Stats. (Milk haulers and milk distributors) and s. 98.146, Stats. (Licensing milk weighers and samplers). 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 to promulgate rules related to milk haulers in s. 97.21 (6), Stats., which allows the Department to establish rules related to the following: fees and regulations for bulk milk tanker operators and milk distributors; standards for the construction, maintenance and sanitary operation of bulk milk tankers, milk distribution vehicles and milk distribution facilities; the design, installation, cleaning and maintenance of equipment and utensils; personnel sanitation; storage and handling of milk and fluid milk products; identification of bulk milk tankers and milk distribution vehicles; and record keeping. The Department has authority under s. 98.146, Stats. to license bulk milk weigher and samplers, and to establish a fee for licensing inspection and reinspections. Related Statutes and Rules
Wisconsin’s milk haulers are governed by ch. 97, Stats. (Food, Lodging, and Recreation). Milk haulers and milk distributors are regulated under s. 97.21, Stats. (Milk haulers and milk distributors). Bulk milk weigher and samplers are governed by ch. 98, Stats. (Weights and Measures). Chapter 65, Wis. Adm. Code (Milk and Milk Products), interprets ch. 97, Stats., as it related to milk and milk products. Chapter 82, Wis. Adm. Code (Bulk Milk Collection, Sampling, and Transportation), interprets ch. 97 and ch. 98, Stats., as it relates to bulk milk collection, sampling, and transportation.
Plain Language Analysis
As of July 2024, Wisconsin has 5,085 licensed grade A milk producers and 785 grade B milk producers. The milk from each of these farms is shipped to one of 50 grade “A” dairy plants and 404 grade B dairy plants. The Department licenses approximately 2,485 bulk milk weigher and samplers (BMWS), 3,265 bulk milk tankers (BMT), and 80 bulk milk tanker cleaning facilities (BMTCF) throughout the state. A BMWS collects official milk samples and may transport raw milk or fluid milk products. A BMT is a mobile bulk container used to transport milk, milk products, whey, or whey cream in bulk. A BMTCF is a facility where a bulk milk tanker or its appurtenances are cleaned and sanitized. All of these groups need to conform, or ensure conformity, to certain requirements including construction, maintenance, cleaning, and sanitation in order to meet applicable food safety requirements.
The Department is proposing to modernize Wis. Admin. Code ch. ATCP 82 with an overhaul of the definitions section, modernization of licensing and documentation requirements, updating of the licensing and fee structure, and enhancement of provisions ensuring proper food safety. Rule revisions also support technological innovations including electronic record keeping devices, in-line sampling systems, and the expanded use of silos while keeping language flexible to account for future enhancements. This rule aligns Wisconsin’s regulations with the U.S. Department of Health and Human Services Public Health Service and Food and Drug Administration Grade “A” Pasteurized Milk Ordinance (PMO), 2019 Revision, and neighboring states for licensing and permitting of grade A tankers and bulk milk weigher and samplers. By maintaining consistency with the PMO, Wisconsin’s rule is consistent with requirements in Illinois, Iowa, Michigan, and Minnesota.
Summary of, and Comparison with Existing or Proposed Federal Statutes and Regulations
The PMO establishes minimum standards for regulation of grade A milk and milk products. States must set regulatory standards equivalent to, or more stringent than, those in the PMO to be allowed to ship grade A milk and milk products in interstate commerce.
Summary of Actions Related to Preliminary Comment Period
and Public Hearing on Statement of Scope
The Joint Committee for Review of Administrative Rules did not require a preliminary public hearing and comment period within 10 days after the Statement of Scope (SS 011-23) publication in the Wisconsin Administrative Register on January 30, 2023. Comparison with Rules in Adjacent States
Illinois
Illinois regulates licensing and permitting of grade A tankers and bulk milk weigher and samplers under the Illinois Compiled Statutes, Grade A Pasteurized Milk and Milk Products Act, (410 ILCS 635/). Illinois completes inspections, and issues a grade A permit after inspection. Illinois charges fees associated with these grade A inspections. Section 5.1 of the Grade A Pasteurized Milk and Milk Products Act states the Illinois Department of Public Health shall charge a fee of $100 for each permit issued to a milk plant, $50 for each permit issued to a receiving station, $25 for each permit issued for a milk tank truck, and $100 for each certified pasteurizer sealer. In addition to such fees, the Illinois Department of Public Health shall assess a late fee if an application for renewal is received after the expiration date of the existing permit. The late fee shall be $50 for a permit issued to a milk plant, $25 for a permit issued to a receiving station, transfer station, or cleaning and sanitizing facility, and $15 for a permit issued to a milk hauler-sampler. Illinois adopts the PMO as part of their dairy regulations under Illinois Administrative Code Title 77, Chapter I, Part 775.20. The PMO allows for regulatory agencies to impose a monetary penalty in lieu of permit suspension.
Iowa
Iowa adopts the PMO and regulates licensing and permitting of grade A tankers and bulk milk weigher and samplers under the Iowa Grade ‘A’ Milk Inspection Law (91 Acts, ch. 74, §11). Iowa completes inspections, and issues a grade A permit after inspection. Iowa charges fees associated with these grade A inspections. The Iowa Grade ‘A’ Milk Inspection Law states the Department shall charge a fee no greater than $2,000 for each permit issued to a milk plant, no greater than $400 for a receiving station, no greater than $20 for a milk hauler, and no greater than $50 for bulk milk tankers. A reinspection fee exists for all permits required that shall not be greater than $40. A person who renews a permit and submits any accompanying renewal fee more than 30 days after the date that the renewal period expires shall pay a late fee equal to 10% of the of the permit renewal fee - however, in no instance shall the fee be less than $25. Iowa adopts the PMO as part of their dairy regulations under Section 192.102 of the Iowa Grade ‘A’ Milk Inspection Law. The PMO allows for regulatory agencies to impose a monetary penalty in lieu of permit suspension. Michigan
Michigan adopts the PMO and regulates licensing and permitting of grade A tankers and bulk milk weighers and samplers under the Michigan Compiled Laws (MCL), Grade A Milk Law of 2001 (Act 266 of 2001). Michigan completes inspections, and issues a grade A permit after inspection. Michigan charges fees associated with these grade A inspections. Sections 288.501 and 288.503 of the Grade A Milk Law of 2001 state the Michigan Department of Agriculture shall charge a license or renewal fee annually for dairy plants. The fee varies by the amount of production at the plant, but the fee shall not exceed $1,600 per year. A $10 late fee may be imposed each business day the application is late; however, the fee shall not exceed $100. Each receiving station or transfer station must be licensed or permitted at a rate of $250 per year. Each milk tank truck cleaning facility that cleans milk contract surfaces of milk tank trucks that is not a part of a dairy plant will be licensed or permitted at a rate of $250 per year - facilities that are a part of a dairy plant do not have to pay a separate licensing fee. Each milk transportation company must be licensed at a rate of $50 per year. Each milk tank truck must be licensed or permitted at a rate of $20 each year. A hauler/sampler license shall be issued to anyone picking up and sampling grade A milk, and this license shall incur a fee of $50 every two years, with an allowance for the initial license fee to be paid in two $25 installments. The Michigan Department of Agriculture may assess a $300 fee on any licensee or permittee requiring the performance of two or more consecutive reinspections or for compliance of items found in violation. Michigan adopts the PMO as part of their dairy regulations under Section 288.490 of the Grade A Milk Law of 2001. The PMO allows for regulatory agencies to impose a monetary penalty in lieu of permit suspension. Minnesota
Minnesota adopts the PMO and regulates licensing and permitting of grade A tankers and bulk milk weighers and samplers under the Minnesota Statutes, Dairy Law (chapter 32D). Minnesota completes inspections, and issues a grade A permit after inspection. Minnesota charges fees associated with these grade A inspections. The Dairy Law states a person collecting milk from a dairy farm and transporting the milk by bulk pickup from farm to plant must obtain a bulk milk hauler and sampler license, which shall include an initial and annual renewal fee of $60. A $30 late fee shall be imposed if a late renewal occurs. All farm bulk milk pickup tankers, milk transports, and tankers used to transport milk products must obtain a permit every twelve months at a fee of $25 per tanker. A pasteurization plant requesting grade A inspection must pay an annual inspection fee of no more than $500. A manufacturing plant that pasteurized milk or milk by-products must pay an annual fee based on the number of pasteurization units, but the fee must not exceed $140 per unit. A dairy plant operator must pay a monthly fee of 1.1 cents per hundredweight of milk purchased the previous month. Michigan adopts the PMO as part of their dairy regulations under Section 32D.02(8)(b) of the Dairy Law. The PMO allows for regulatory agencies to impose a monetary penalty in lieu of permit suspension.
Summary of Factual Data and Analytical Methodologies
The rule changes were developed in response to recent technological advancements, changes to industry best practices, and updates to expectations surrounding food safety. Department staff met with industry representatives including members of the Wisconsin Association of Dairy Plant Field Representatives, the Wisconsin Milk Haulers Association, the Wisconsin Cheese Makers Association, and private industry representatives. Between October 24, 2023 and May 13, 2024, this group met nine times.
