DATCP Docket No. 15-R-07
Rules Clearinghouse No.
Proposed Hearing Draft
October 30, 2015
PROPOSED ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby proposes the following rule to repeal ATCP 82.02 (1), ATCP 82.02 (4), and ATCP 82.02 (7) (b) and (c); to renumber and amend ATCP 82.02 (7)(a); to amend ATCP 82.02 (title), ATCP 82.02 (2) (intro.) and (e), ATCP 82.02 (3), ATCP 82.02 (6) (title), (a), (b), and (c), ATCP 82.02 (7) (title), and ATCP 82.02 (7) (d) (intro.); and to create ATCP 82.02 (2) (dm) and ATCP 82.02 (5); relating to bulk milk tanker licensing regulations, 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 bulk milk tanker licensing and permitting, construction, maintenance, cleaning and sanitizing requirements; bulk milk weigher and sampler requirements, and mandatory procedures for collecting milk from dairy farms and delivering milk to a dairy plant and collecting milk samples for testing through ch. ATCP 82 (Bulk Milk Collection, Sampling, and Transportation). This rule revision will incorporate recent statutory changes eliminating licensing requirements for bulk milk tankers.
Statutes Interpreted
  Statute Interpreted: s. 97.21, Stats. (Milk haulers and milk distributors).
Statutory Authority
Statutory Authority:   ss. 93.07 (1), 97.09 (4), and 97.21 (6), 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 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.
Related Statutes and Rules
Wisconsin’s milk haulers are governed by ch. 97, Stats. (Food Regulation). Milk haulers and milk distributors are regulated under s. 97.21, Stats., (Milk haulers and milk distributors). Chapter 82, Wis. Adm. Code, interprets ch. 97, Stats., as it relates to milk haulers and milk distributors.
Plain Language Analysis
In the past, Wisconsin required the owner of a bulk milk tanker used to transport grade “A” milk and milk products to hold both a license and a Grade “A” permit for that tanker. The department charged a licensing fee of $45 and issued a Grade “A” permit as an endorsement on the license. 2015 Wisconsin Act 55 revised s. 97.21, Stats., eliminating bulk milk tanker licensing and license fee requirements and aligned Wisconsin with most other states by removing the requirement that bulk milk tanker operators hold both a tanker license and a grade “A” permit. The proposed rule continues the alignment with other states by maintaining the requirement that a grade “A” permit cannot be issued to a bulk milk tanker unless that tanker has passed an inspection by the department, a Wisconsin certified industry inspector, or a regulator from the relevant agency in another state within the preceding year. Reciprocity of the Grade “A” bulk milk tanker permit is required by the US Food and Drug Administration’s Pasteurized Milk Ordinance (PMO), a cooperative agreement that governs the interstate shipment of Grade “A” milk and milk products, and is the basis of each state’s Grade “A” milk requirements. The department proposes to incorporate these revisions into ATCP 82 to reflect these recent statutory changes and remain consistent with the PMO.
As part of this rule revision, the department also proposes to remove a confusing provision related to employees of companies that own bulk milk tankers. The current rule states that an employee who drives a bulk milk tanker is not required to obtain a separate Grade “A” permit to drive the truck, if the owner of the bulk milk tanker owner already has a Grade “A” permit for the tanker. However, this provision is unnecessary as an employee who drives a bulk milk tanker already bearing a Grade “A” permit would never be expected to acquire a separate Grade “A” permit. The original intent of the rule was to exempt an employee who drives a bulk milk tanker transporting and holding Grade “A” milk from the requirement to hold a bulk milk weigher and sampler license if the employee does not weigh or sample the milk. This requirement is implicitly stated in s. ATCP 82.04(1).
The rule also adopts a modest increase in the reinspection fee, so that it covers department costs. Reinspections are conducted by the department to verify that appropriate corrective actions have been taken, after an initial inspection indicates a bulk milk tanker does not meet one or more regulatory requirements. In the past year, only 13 tankers required reinspection. The proposed rule increases the reinspection fee from $45 to $60.
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.
Comparison with Rules in Adjacent States
Michigan, Minnesota, Iowa and Illinois base their dairy regulations on the PMO. The proposed rule will align Wisconsin’s regulations with the PMO and these neighboring states for licensing and permitting of grade “A” tankers and bulk milk weighers and samplers. Each of these states inspects bulk milk tankers, and issues a grade “A” permit after inspection. Some states charge a fee associated with these grade “A” inspections.
Summary of Factual Data and Analytical Methodologies
Proposed rule changes were developed in response to recent statutory change after a review of PMO requirements and a review of practices in neighboring states.
Analysis and Supporting Documents used to Determine Effect on Small Business
The PMO makes no distinction between large and small businesses in establishing requirements for collection, sampling and transport of grade “A” milk and milk products.
Effect on Small Business
By eliminating licensing fees, the proposed rule changes will benefit those dairy producers, dairy plants, and companies that operate bulk milk tankers, many of which are small businesses. The proposed rule includes a modest increase in the reinspection fee from $45 to $60, to cover the current cost of reinspection. This fee would only be charged if the department finds a regulatory violation necessitating corrective action and a reinspection. In the past year, only 13 owners of bulk milk tankers were charged a reinspection fee. All grade “A” dairy businesses, whether large or small, must meet regulations that are substantially in compliance with the FDA’s PMO in order to collect, sample, and transport grade “A” dairy products. The PMO allows for no special accommodations for small businesses.
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